



♦ 











/ 


% 



















t I 























































































t ' 


- 






















♦ 



















♦ 

• 


• 




















' 

















. 






















. •' • * , 













c< 

* 


























' 




















. 

















































































•* 




































. ♦ 












































































































REFORMS IN LEGAL PROCEDURE 


HEARINGS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 
SIXTY-SECOND CONGRESS 
Second Session 


3 2Jt 

r/r 


AMERICAN BAR ASSOCIATION BILLS 

H. R. 16459, H. R. 16460, AND H. R. 16461 

AND 

H. R. 18236 

(Covers subject matter of EL R. 12365) 

TO ALLOW AND REGULATE AMENDMENTS IN JUDICIAL PRO¬ 
CEEDINGS IN THE COURTS OF THE UNITED STATES 

AND 

H. R. 16808 

TO AMEND THE JUDICIAL CODE 
AND 

H. R. 17249 

TO AMEND SECTION 237 OF THE JUDICIAL CODE 


JANUARY 25, 1912 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1912 





























vy 

\V O' 




■ 

•V 

JfA ■ 








' ’ 










































•< 












































f»- 8F fc 

*" 20 I® 1 ? 














* # 








* I 

A 

t 









COMMITTEE ON THE JUDICIARY. 
House of Representatives. 


Henry D. Clayton, Alabama, Chairman. 


Robert L. IIenry, Texas. 

Edwin Y. Webb, North Carolina. 
Charles C. Carlin, Virginia. 
William W. Rucker, Missouri. 
W t illiam C. Houston, Tennessee. 
John C. Floyd, Arkansas. 

Robert Y. Thomas, Jr., Kentucky. 
James M. Graham, Illinois. 

H. Garland Dupree, Louisiana. 
Martin W. Littleton, New York. 


Walter I. McCoy, New Jersey. 
John W. Davis, West Virginia. 
Daniel J. McGillicuddy, Maine. 
John A. Sterling, Illinois. 
Reuben O. Moon, Pennsylvania. 
Edwin W. Higgins, Connecticut. 
Paul Howland, Ohio. 

Frank M. Nye, Minnesota. 
George W. Norris, Nebraska. 
Francis II. Dodds, Michigan. 


J. J. Speight, Clerk. 

C. C. Brannen, Assistant Clerk. 


REFORMS IN LEGAL PROCEDURE. 


AMERICAN BAR ASSOCIATION BILLS, H. R. 16459, H. R. 16460, 
H. R. 16461, AND H. R. 18236 (COVERS SUBJECT MATTER OF 
H. R. 12365), TO ALLOW AND REGULATE AMENDMENTS IN JUDI¬ 
CIAL PROCEEDINGS IN THE COURTS OF THE UNITED STATES; 
H. R. 16808, TO AMEND THE JUDICIAL CODE; AND H. R. 17249, 
TO AMEND SECTION 237 OF THE JUDICIAL CODE. 


Committee on the Judiciary, 

. House of Representatives, 

Thursday , January 25,1912. 

The committee met at 10 o’clock a. m., Hon. Henry D. Clayton 
(chairman) presiding. 

The bills upon which the hearings were had are as follows: 

[II. R. 16459, Sixty-second Congress, second session.] 

In the House of Representatives. 

December 20, 1911. 

Mr. Clayton introduced the following bill; which was referred to the Com¬ 
mittee on the Judiciary and ordered to be printed. 

A BILL To amend section two hundred and thirty-seven of an act approved March third, 
nineteen hundred and eleven, entitled “An act to codify, revise, and amend the laws 
relating to the judiciary.” 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That section two hundred and thirty-seven of 
the act approved March third, nineteen hundred and eleven, entitled “An act to 
codify, revise, and amend the laws relating to the judiciary,” be, and the same 
is hereby, amended so as to read as follows: 

“ Sec. 237. A final judgment or decree in any suit in the highest court of a 
State in which a decision in the suit could be had where is drawn in question 

3 





4 


REFORMS IN LEGAL PROCEDURE. 


the validity of a treaty or statute of, or an authority exercised under, the 
United States, or where is drawn in question the validity of a statute of, or an 
authority exercised under, any State, on the grounds of their being repugnant 
to the Constitution, treaties, or laws of the United States, or where any title, 
right, privilege, or immunity is claimed under the Constitution, or any treaty or 
statute of, or commission held or authority exercised under, the United States, 
may be reexamined and reversed or affirmed in the Supreme Court upon a writ 
of error. The writ shall have the same effect as if the judgment or decree com¬ 
plained of had been rendered or passed in the court of the United States. The 
Supreme Court may reverse, modify, or affirm the judgment or decree of such 
State court, and may, at their discretion, award execution or remand the same 
to the court from which it was removed by the writ.” 

[H. R. 16460, Sixty-second Congress, second session.] 

In the House of Representatives. 


December 20, 1911. 


Mr. Clayton ntrodueed the following bill; which was referred to the Com¬ 
mittee on the Judiciary and ordered to be printed. 

A BILL To amend the act of March third, nineteen hundred and eleven, entitled “An act 
to codify, revise, and amend the laws relating to the judiciary.” 

Be it enacted by the Senate and House of Representatives of the United, 
States of America in Congress assembled, That the act of March third, nine¬ 
teen hundred and eleven, entitled ‘‘An act to codify, revise, and amend the 
laws relating to the judiciary,” be, and the same is hereby, amended by insert¬ 
ing after section two hundred and seventy-four, at the end thereof, two new 
sections, to be known as section two hundred and seventy-four A and section 
two hundred and seventy-four B, as follows : 

“Sec. 274 A. In case any of said courts shall find that a suit at law should 
have been brought in equity or a suit in equity should have been brought at 
law, the court shall order any amendments to the pleading which may be 
necessary to conform them to the proper practice. Any party to the suit 
shall have the right, at any stage of the cause, to amend his pleadings so as 
to obviate the objection that his suit was not brought on the right side of 
the court. The cause shall proceed and be determined upon such amended 
pleadings. All testimony taken before such amendment shall stand as testi¬ 
mony in the cause with like effect as if the pleadings had been originally in 
the amended form. 

“ Sec. 274 B. In all actions at law equitable defenses may be interposed by 
answer, plea, or replication without the necessity of filing a bill on the equity 
side of the court. The defendant shall have the same right in such case 
as if he had filed a bill embodying the defense of seeking the relief prayed for 
in such answer or plea. Equitable relief respecting the subject matter of 
the suit may thus be obtained by answer or plea. In case affirmative relief 
is prayed in such answer or plea the plaintiff shall file a replication. Review 
of the judgment or decree entered in such case shall be regulated by rule of 
court. Whether such* review be sought by writ of error or by appeal, the 
appellate court shall have full power to render such judgment upon the records 
as law and justice shall require.” 

[H. R. 16461, Sixty-second Congress, second session.] 

In the House of Representatives. 

December 20, 1911. 

Mr. Clayton introduced the following bill; which was referred to the Com¬ 
mittee on the Judiciary and ordered to be printed. 

A BILL To regulate the judicial procedure of the courts of the United States. 

Be it enacted' by the Senate and House of Representatives of the United 
States of America in Congress assembled, That section two hundred and sixty- 
nine of the act approved March third, nineteen hundred and eleven, entitled. 


REFORMS IN LEGAL PROCEDURE. 


5 


"“An act to codify, revise, and amend the laws relating to the judiciary ” be, 
nnd the same is hereby, amended so as to read as follows: 

“ Sec. 269. That no judgment shall be set aside, or reversed, or new trial 
granted, by any court in the United States in any case, civil or criminal, on 
the ground of misdirection of the jury or the improper admission or rejection 
of evidence, or for any error as to any matter of pleading or procedure, unless 
in the opinion of the court to which the application is made, after an examina¬ 
tion of the entire cause, it shall appear that the error complained of has 
injuriously affected the substantial rights of the parties. The trial judge may 
in any case submit to the jury the issues of fact arising upon the pleadings, 
reserving any question of law arising in the case for subsequent argument 
and decision, and he and any court to which the case shall thereafter be taken 
on writ of error shall have the power to direct judgment to be entered either 
upon the verdict or upon the point reserved, if conclusive, as its judgment upon 
such point may require.” 

[H. R. 18236, Sixty-second Congress, second session.] 

In the House of Representatives. 

. January 18, 1912. 

Mr. Clayton introduced the following bill; which was referred to the Committee 
on the Judiciary and ordered to be printed. 

A BILL To allow and regulate amendments in judicial proceedings intke courts of the 

United States. 

Be it enacted try the Senate and House of Representatives of the United States 
of America in Congress assembled , That in any suit in equity instituted in the 
courts of the United States wherein it shall be decided prior to final decree 
that the complainant has a complete and adequate remedy at law the complain¬ 
ant may, at his election, upon such terms as the court may impose, cause the 
same to be transferred to the law docket of the court, there to be proceeded with 
as if originally instituted as a suit at law. 

Sec. 2. That where, in any suit brought in or removed from any State court to 
any district court of the United States, the jurisdiction of the district court is 
based upon the diverse citizenship of the parties, and such diverse citizenship 
in fact existed at the time the Isuit was brought or removed, though defectively 
alleged, either party may amend at any stage of the proceedings and in the 
appellate court upon such terms as the court may impose, so as to show on the 
record such diverse citizenship and jurisdiction, and thereupon such suit shall 
be proceeded with the same as though the diverse citizenship had been fully 
and correctly pleaded at the inception of the suit, or, if it be a removed case, 
in the petition for removal. 

The Chairman. The committee has met this morning for the pur¬ 
pose of hearing Mr. Wheeler and others on H. R. 16459, 1G4-60, 
and 16461, and while Mr. Lehmann, the Solicitor General is here, 
I shall, if we have time this morning, ask him something about LI. R. 
12365 (now H. R. 18236), that I called your attention to the other 
day. That relates to two matters: One is where the party has mis¬ 
taken his remedy, conducted the litigation, and afterwards it is found 
out he has gone into the wrong court, rather than to have him dis¬ 
missed from the court he is permitted to have his cause transferred 
to the proper court upon such terms as to cost as the court may im¬ 
pose; and the second object of that bill is where diverse citizenship 
is defectively alleged, which, of course, can be taken advantage of 
in the appelate court to permit the allegation to be amended even in 
the appellate court, so as to properly aver the diverse citizenship. 

We will hear Mr. Wheeler first on the bills that I have already 
enumerated, and which I introduced at his request, he having brought 
them at the instance of the American Bar Association. 


6 


REFORMS IN LEGAL PROCEDURE. 


STATEMENT OF HON. EVERETT P. WHEELER, OF NEW YORK, AP¬ 
PEARING FOR THE AMERICAN BAR ASSOCIATION. 

Mr. Wheeler. Mr. Chairman and gentlemen of the committee, 
these three bills that are before you are drawn by a special committee 
of the American Bar Association. We have been considering them 
for four years. Complaints that came to us from various States and 
various interests, the complaints of employees and employers alike, 
in regard to the delays of the law, in regard to the frequent occasions 
of the miscarriage of justice by reason of the disposition of a case 
not upon the merits but upon some technical objection that was quite 
irrespective of the merits. We have endeavored to deal with that 
situation in. a conservative way. It was to provide for three several 
difficulties that these three bills were drawn. 

I may say that 16461 has been before three successive Congresses, 
and I will take that up a little later. 

The first bill (H. R. 16459) proposes to change section 237 of the 
Judicial Code so as to provide that if a decision is rendered in the 
highest court of a State that an act of that State is in violation of 
the United States Constitution, there may be a writ of error from the 
Supreme Court of the United States. As you are aware, under the 
present law such a writ of error can only be taken in such a case when 
the decision denies the claim made in the State court and sustains 
the validity of the State statute. 

We know historically it was thought that no State court would 
ever decide that a State statute was in violation of the United States 
Constitution, except in a very clear case; that therefore it was un¬ 
necessary to do more than give a right of review where the State 
statute was sustained. But in the great expansion of the country 
and the great increase in judicial businessjhis function of the appel¬ 
late courts has been developed. So we find, as a matter of fact, that 
the courts are dealing with the Constitution and declaring statutes 
to be in violation of it more freely than they did at first. None of 
us can deny that, and none of us can fail to see that there is great 
public dissatisfaction. As a lawyer I regret that that dissatisfac¬ 
tion should sometimes have found expression in somewhat violent 
language. We all of us desire that the courts should maintain what 
they have had in the past—the respect of the whole community. 
But we are confronted with the situation that the diversity in the 
decisions in different States on constitutional questions is a griev¬ 
ance. It seemed to your committee and to the association that this 
was a just grievance. 

One recent illustration that has brought the matter very much to 
the front and excited, I may say, universal attention throughout the 
country is the decision of the Court of Appeals of New York in the 
Ives case. 1 

There is a general tendency toward ameliorating the State law 
as the judges have made it in regard to the liability of employers. 
Such a law, very carefully considered, was adopted in the State of 
New York. The point was made that it took away the property of 
the employer without due process of the law, because it imposed a cer¬ 
tain liability irrespective of fault. 


^01 N. Y., 271. 



REFORMS IN LEGAL PROCEDURE. 


7 


Mr. Moon. And thereby violated the fourteenth amendment. 

Mr. Wheeler. Precisely. I was one of the counsel in that case. I 
was not called in on behalf of the original parties to the litigation. 
It excited great interest, and the Federation of Labor asked me to 
put in a brief, which I was glad to do. There is.no time to discuss 
and there is no propriety in discussing whether the decision which 
was made was right or wrong. The court held that the statute was 
invalid. Yet we find right across the Hudson River that the courts 
of first instance in New Jersey have held a similar statute to be 
valid. The courts in Wisconsin, in Montana and in the State of 
Washington have held a similar statute to be valid. 

Mr. Moon. And those courts were the supreme courts ? 

Mr. Wheeler. Yes; they were the supreme courts of their re¬ 
spective States. The result of that is that the Constitution of the 
United States means one thing in New York and another thing in 
New Jersey, Wisconsin, Montana, and Washington. That is not a 
situation that commends the court or the law to the average man. 
You can explain it to a lawyer; we understand how it has arisen, 
but to a man who is not a lawyer and who looks at it as a man in 
the street does, it seems indefensible. I have heard it suggested that 
this law if passed would throw a burden upon the Supreme Court, 
but it seems to me that the most important duty and function of 
that court is to decide questions under the Constitution of the United 
States; that this is its original jurisdiction conferred by the Con¬ 
stitution itself. Whichever way such a question was decided in the 
court below the case was “ a case under the Constitution,” section 2, 
Article III, of the Constitution itself in defining the jurisdiction of 
the Federal courts declares: 

The judicial power shall extend to all cases in law and equity arising under 
this Constitution. 

Moreover it seems to us that inasmuch as the cases are generally 
typical cases, that the decision of the Supreme Court, the highest 
tribunal, in one such case would settle them all, and the court would 
not, after all, have such an influx of appeals from this source. 

There would be, in short, one test case which would settle the law 
for the whole country, and the State courts would enforce it accord¬ 
ing to the decision at Washington. 

Mr. Moon. Mr. Wheeler, let me ask a question or two. The theory 
of the fathers in framing the Constitution upon that point I think 
was this: That they wanted to impinge upon the courts of the State 
just as little as possible, and that the two courts were to be kept inde¬ 
pendent, the one absolutely supreme in its own scope, and that when¬ 
ever a question as to the constitutionality of an act or the violation 
of the Constitution of the United States was involved in a State 
court, and a decision there was that the Constitution of the United 
States was involved, and that the Constitution of the United States 
prevented it, then the Federal question arose and the decision was 
against the United States and the decision should go to the United 
States Supreme Court, but just as they had decided that the consti¬ 
tutionality of the act, that the act was unconstitutional, that it should 
be limited then to the jurisdiction of the States. 

So far as I am concerned, I do not yet see any important reason 
why that should not be done, and yet no doubt inquiry ought to be 


8 


REFORMS IN LEGAL PROCEDURE. 


given to it to see whether there is not some important principle which 
we are overlooking involved in that thing, and I do not believe that 
any one concrete case could justify us in changing the existing law 
if there was a principle involved. I would like to investigate it a 
little further. I do not now see any objection to it so far as I am 
concerned, but there might be. 

Mr. Wheeler. Next let me say a few words in regard to bill 16460. 
That provides that in case it appears in the course of litigation that 
an action has been brought on the wrong side of the court—at law 
when it should have been in equity, or in equity when it should have 
been in law—that the court shall permit such an amendment to the 
pleadings as to obviate the difficulty. It provides in the second place 
that equitable defenses may be interposed in suits at law. This is 
really conforming the practice of the Federal courts to the practice 
that prevails in most of the States, in two-thirds of them at least. 
It is now permissible in them to obtain equitable relief on an answer 
without the necessity of a cross bill. 

If a suit of law is brought, for example, on a contract, it is per¬ 
missible by answer to pray that there be a reformation of the con¬ 
tract. I think I may speak for the bar of all these States; it was 
their unanimous expression at our last bar meeting that this practice 
is a great convenience. It saves time. I tried, for example, myself, 
last March, in New York a case where an action was brought on a 
promissory note, and defense was set up in equity that in the Fed¬ 
eral courts would have compelled the filing of a cross bill for equit¬ 
able relief. The court tried them both. Under our practice, which I 
think is the practice of most of the States where this general princi¬ 
ple is adopted, the court ordered the issues raised by the equitable 
answer to be tried before the same jury that tried the issues on the 
note. I am told by one of my Georgia friends, Maj. Cummings, of 
Augusta, that in all equity cases in that State the issues of fact are 
tried before a jury. We all know that under the old equity practice 
if a chancellor was in doubt upon an important question of fact, he 
could permit issues to be tried by a jury. All this procedure is flexi¬ 
ble ; it is all within the molding power of the court, and it does seem 
unreasonable that the Federal courts should be the last to permit such 
a flexibility of practice. 

In the Federal courts, as we all know, the same judge, the same 
individual, sits in one case wdien there is written at the top of the 
title “At law ”; and again in another case where the title reads 
“ In equity ”; and then, in a third, where the title reads “ In ad¬ 
miralty. 7 ' You have the same individuals deciding the equity, the 
law, and the admiralty. Why should counsel be obliged, if it turns 
out that there is some equitable point in the law case or some legal 
point in the equitable case, to bring a separate suit ? 

Mr. Moon. Judge, has it not always been decided by the Supreme 
Court of the United States that in the jurisprudence of the United 
States it is always recognized—the distinction between law and 
equity is under the Constitution a matter of substance as well as 
form and procedure, and, accordingly, legal and equitable claims 
can not be blended together in one suit? It seems to me there is a 
long line of cases establishing that fact—regarded under the Con¬ 
stitution as a matter of substance as well as form. 


REFORMS IN LEGAL PROCEDURE. 


9 


Mr. Wheeler. We have considered that very subject, and you 
will find in this report which we are going to hand up to the com¬ 
mittee a careful consideration of it. The language of the Consti¬ 
tution is this (sec. 2, Art, III) : 

The judicial power shall extend to all cases in law and equity arising under 
this Constitution, the laws of the United States, and treaties made or which 
shall be made under their authority. 

This recognizes the intrinsic distinction between the principle of 
law and equity. You get damages in a suit at law; you get spe¬ 
cific relief in your equity suit; and yet from the beginning—the 
judiciary act of 1789—we have intrusted the administration of those 
systems to the same judge. Why should it be any more an infringe¬ 
ment to permit that same individual, in the same courts to mold the 
practice so as to administer either species of relief without the neces¬ 
sity of a new suit? In some of these cases that are referred to the 
decision was based on the existing statute. This statute does seem 
to require that the old methods which followed the English prac¬ 
tice should still be followed; yet in a recent case, referred to on 
page 16 of our report (Schurmeyer v. Connecticut Mutual, 171 
Fed., 1), the Circuit Court of Appeals of the Eighth Circuit held 
that even under the existing statute it was permissible where a suit 
had been brought on the wrong side of the court to mold the plead¬ 
ings without compelling a new suit to be brought. But that has 
not been the general practice in the circuits, and the one effect of 
this act, if adopted, would be to assimilate the practice in all of them 
to that in the Schurmeyer case. 

We do not undertake to break down the distinction between law 
and equity, but simply enable the court to mold its practice so as 
to administer the relief appropriate in either case without the neces¬ 
sity of a separate suit or of a cross bill. Perhaps some relief pro¬ 
vided in this bill might be granted by rule of the Supreme Court. 
But I am informed that, inasmuch as that part of it which deals 
with cases at law does not come within the broad power of making 
rules conferred by law in that court, it would be quite content if 
this broader power should be given so as to enable the court to deal 
with both sides of the question. The court undoubtedly could say, 
“By an amended equity rule you v can get relief in an answer to a 
bill in equity, which at present you can only get by cross bill.” 
That is within the present power of the court. But they have no 
power to say, “ You can set up an equitable defense in a suit at law.” 
And that is what we ask. 

Mr. Moon. Of course, they have said repeatedly that you can not. 

Mr. Wheeler. Yes; under the present statute, but they have 
never held it under the Constitution—simply under the statute. 
Those cases are all collected and referred to in that part of the re¬ 
port which deals with that subject, which I have handed up to the 
committee, that begins on page 11. 

Now, let me come to the third of our bills. That is in a different 
position. That bill is the one to which I referred as having been 
previously before Congress. It passed the House of Representa¬ 
tives unanimously at the last session. It went to the Senate, but, 
unfortunately, there was not time to bring it to a vote there, and so 
it lapsed. Let me make an observation in regard to the framing of 
this particular act. I think, perhaps, in drafting it, it would have 


10 


REFORMS IN LEGAL PROCEDURE. 


been better if the bill had provided that instead of amending “ sec¬ 
tion 269 so as to read as follows,” it had been provided that that 
section should “ be amended by adding at the end thereof the 
following.” 

Mr. Moon. The bill as drawn is not right; it should not read 
that way. 

Mr. Wheeler. I think it should be amended in the committee, 
because the present section 269 is the old clause that gives power to 
grant new trial. There is no reason why we should take away that 
granted power expressed in the present statute. Therefore I would 
propose the amendment as an addition to section 269—not as a 
substitute for it. 

Mr. Moon. You would have to put in the whole section anyhow* 
because as amended it would not read this way. 

Mr. Wheeler. The object of this particular bill is twofold. In 
the first place it gives to the court of appeals the power to deal with 
the case upon the merits, without regard to technical errors in the 
pleading or procedure that do not affect the merits. In the next place, 
m the final clause, it gives to all the Federal courts the power that is 
possessed in a number of States, that my friend Mr. Moon has in¬ 
formed us on a previous occasion exists in Pennsylvania. It does 
exist in New York. On the other hand, Mr. Whitman, of Illinois* 
tells me it does not exist there. Under the present statute the State 
court practice in suits at law is the model for the Federal courts, so 
that the circuits have to follow the practice of the States in this re¬ 
spect. This section would assimilate the practice throughout the 
country and give to the Federal courts everywhere the power to take 
a verdict on the facts, reserving its decision on the law. That seems 
to us manifestly reasonable. It obviates the necessity of frequent new 
trials, which only prolong litigation and tend to divert the examina¬ 
tion of the court from the real merits of the case. 

Mr. Moon. Do not many of the judges do it anyhow? 

Mr. Wheeler. In some circuits they do and others they do not. 

Mr. Whitman. I think they could hardly do it under our statute in 
Illinois. I have never known of it being done. 

The Chairman. Could not they bring a special verdict on a ques¬ 
tion of fact? 

Mr. Wheeler. Oh, yes. 

Mr. Davis. The bringing of a special verdict upon a question of 
fact does not exist with us. 

Mr. Moon. It is the practice in some of the Federal courts. 

Mr. Wheeler. That is just it; it does exist in some circuits, but it 
does not exist in others. We have pointed out in this brief numerous 
cases where, by reason of the ordering of a new trial instead of grant¬ 
ing judgment upon the merits, a case has been sent back for a second 
trial. In the Hillmon case in the Federal courts (145 U. S., 285; 188 
U. S., 208) the second reversal of judgment in the court below was 
23 years after the suit began. In the case of Springer v. Westcott 
(166 N. Y., 117) there were four appeals, and the entire recovery 
was only $900—for the contents of a trunk. It is obvious that the 
- expense of the litigation far exceeded the amount finally recovered. 

In another case, Walters v. Syracuse Rapid Transit Co. (178 N. Y.* 
50), there were four appeals. 


REFORMS IN LEGAL PROCEDURE. 


11 


And so it comes to this, that on the second or the third trial you 
have the double difficulty. In the first place it is certain that the 
memory of the honest witnesses will not be as accurate as it was 
when the facts were fresh. But suppose you have a dishonest wit¬ 
ness, and he is willing to shape his testimony, as they sometimes do— 
as the court in the Walters case says they often do—to meet the 
exigencies of the situation created by the opinion of the court, under 
the present method, you do great injustice to litigants. 

Mr. Moon. In personal damage cases I think it is pretty often. 

Mr. Wheeler. It often happens. There can be no question of that. 
Take one of those cases. Suppose the judge is in doubt as to whether 
or not the complaint or suit (however you phrase it in the different 
States) should be dismissed; suppose questions of law are raised as to 
whether the necessary preliminaries have been satisfactorily com¬ 
plied with, he should take a verdict on the facts and reserve his 
decision on the law? I may illustrate by two cases in volume 160 
of the New York Reports. Exactly the same question arose in each. 
The judges dealt with them differently. In one case he dismissed 
the suit; in the other case he took a verdict on the facts and reserved 
his decision on the law. When the first case went to the court of 
appeals they held he was wrong on the law and were compelled to 
order a new trial; in the second case, where a verdict had been taken, 
the court of appeals reinstated the verdict and ordered payment 
upon it. 1 

The whole effect, gentlemen, on this statute as we propose is to give 
validity and dignity to the verdict of a jury. All practicing lawyers 
know that juries are not so much influenced by these fine points of 
evidence, the technical objections raised on the trial, as many seem to 
suppose. I have often talked with jurymen after a verdict, and I 
uniformly, without exception, found this to be the case—the fine 
points of objection to this or to that did not weigh with the jury a 
particle. Really you would get a fairer verdict and you certainly 
would get a more stable one by permitting the practice here proposed 
than you would do under the present system. 

Let me make one more suggestion, for which I am indebted to 
Attorney General Williams, who was one of the veterans when we 
had our meeting at Seattle and discussed this very question, and 
who has since departed to another world. “ Why,” he said, “ gen¬ 
tlemen, as long as these technical objections have an effect on an 
appeal, as long as courts on appeal reverse judgments because of 
them, so long will lawyers feel themselves bound to take them.” The 
public censures us for making technical objections, but a lawyer is 
bound to do his best for his client, and as long as he can take the 
objection and have it considered in a court he is sure to do it. “ But,” 
he added, “ if you take away the effect of these objections, if you 
provide that the appellate court shall not decide the case because of 
a purely technical error, the lawyers will not make them any more. 
This would leave the case free to be dealt with upon the merits.” 

• It seems to me that is always the position we want to be in. Of 
course, every man has been called upon to interpose legal objection 
when he was conscious that the real merits of a case were with the 
adverse party. That is our duty. Our client has a right to be heard 


iMissano v. Mayor (160 N. Y., 123) ; Sheehy v. Mayor (160 N. Y., 130 . 



12 


REFORMS IN LEGAL PROCEDURE. 


upon his case whatever it is. But that is a painful position for a 
lawyer. 

The true position we all want to occupy is to have a good case, 
strong upon the merits, and be in a position where we can push it to 
judgment as soon as ordinary conditions will permit. Let us con¬ 
sider this legislation from that standpoint, which is the standpoint of 
the public. 

Mr. Solicitor General Lehmann is interested in these bills from the 
legal standpoint. He was chairman of this committee of which I am 
now chairman, and I am following in his illustrious footsteps. Mr. 
Whitman, of Illinois, and Mr. Saner, of Texas, are here, so that we 
represent, we may say, all the great States east of the Rocky Moun¬ 
tains. I wish we could have had Attorney General Williams here 
from Washington to tell the story that I have recited for him to you. 
I do believe we represent a universal sentiment, and we hope this 
House, as the last, will embody it in legislation. 

The Chairman. We will now be glad to hear from the Solicitor 
General. 

STATEMENT OE HON. FREDERICK W. LEHMANN, SOLICITOR 
GENERAL OF THE UNITED STATES. 

Mr. Lehmann. Mr. Chairman and gentlemen of the committee, 
Mr. Moon has made some, inquiry of me with respect to the bills 
here which provide for the administration of legal and equitable 
remedies in the same bill. I began the practice of law in Iowa. The 
code that was then enforced was that of 1860, and so long ago as 
that, more than 50 years ago, the State of Iowa recognized it and 
^applied the procedure that is proposed in these bills. That was done 
under a constitution which is essentially, so far as the matters here 
involved are concerned, like that of the United States; that is to say, 
n constitution which creates courts which have jurisdiction at law 
and in equity, and the rulings of the court on that constitution have 
been that the substance of law in equity must be obtained distinc¬ 
tively. Nebraska has similar provisions, and so has the constitution 
of Missouri, as Judge Rucker knows. In all of those States we have 
but one form of action, but we administer the remedies either legally 
or equitably, as the nature of the case may require, and we have no 
real controversies. Of course, where the line of distinction between 
law and equity is broad, there is not likely to be any mistake of 
either party with respect of it. When you come to that twilight 
land where it is debatable—we do not have the debates in those 
States, because w T e can just take it either way as it may suit the 
parties. If nothing but a money judgment is asked in a case, a 
jury can administer the remedy, even though there may be equitable 
grounds for relief. On the other hand, if the case is purely one of 
legal cognizance, and we try it as a legal case, nobody is permitted 
to complain and ought not to- 

Mr. Moon. Well, Mr. Solicitor General, the converse of that could 
not be absolutely—that is, you could not administer common-law 
rights under equitablbe forms without violating the seventh amend¬ 
ment of the Constitution. 

Mr. Lehmann. That you could do only by consent. 

Mr. Moon. Yes; only by consent. 



REFORMS IN LEGAL PROCEDURE. 


13 


Mr. Lehmann. But we avoid controversy upon that, because men 
are not looking for nice distinctions between law and equity, and we 
simply get rid of a whole lot of formality; as you say, if the man 
insists upon his rights to trial by jury, of course, he gets it, and if he 
has consented to a trial by court he can not raise the question that 
the suit was brought in the wrong form, and that is what we propose 
to do here by this bill—that if the suit is brought in the wrong form 
it shall not be dismissed, but it shall simply be recast in the proper 
form and proceed in the same tribunal. The difference between our 
Federal practice and our State practice is simply this: Both in the 
State courts and in the Federal courts the same man sits as judge 
at law and as chancellor. 

Mr. Moon. That is not so in some States. 

Mr. Lehmann. Take the Western States, that is true in part of 
them. Of course, New Jersey has its separate courts of equity; but 
in the State of Missouri the same man sits as a judge at common law 
and as chancellor. He has the same docket, or he may have two 
dockets, and the case may be labeled “ at law ” or “ in equity.” It 
is in Iowa; it is not in Missouri—you do not have to label it. When 
we come into the Federal courts, however, having removed a case 
which was of equitable cognizance, and brought it in the way in 
which we do in the State courts, we have but one form of action, 
and the original pleading is called a petition whether at law or 
equity. When we come to the Federal court we must recast it. If 
we have made a mistake in the State court and brought a suit as 
being at law when it should be in equity, and that case is removed 
to the Federal court, we are thrown out altogether. We can not 
recast the form. If we have made a mistake on the equity side and, 
say, if you institute your Federal court at law when it should bo 
equity, you can run along, incur a great deal of expense, and at the 

very last the-may be taken or the court may take it sui sup- 

planta, and out you go. 

On what? On manner of form. And the parties are punished 
for what? Not for any fault of their own, but for the fault of the 
lawyers who are accredited by the court as competent to guide them. 
And the essential bias of your formal, technical procedure is that 
you create a body of learning which is of no interest whatever to 
the parties litigant, and which the high priests who are supposed 
to be educated in the mysteries are themselves incapable of under¬ 
standing. Then you do not punish the priests, but you punish the 
neophyte who follows them. 

Mr. Moon. Mr. Lehmann, the things followed are expressed ap¬ 
proximately like this: I do not think anybody that has ever prac¬ 
ticed law or that studied law from any scholastic standpoint is not 
entirely in accord with my own doctrine, and do not believe the 
old common-law doctrines are absolutely ridiculous in this: The 
Supreme Court gives expression to the Constitution of the United 
States and the courts recognize and establish the distinction between 
law and equity. The remedies in courts of the United States are 
in common law and equity in accordance with the Constitution of 
the United States and in accordance with the principles of common 
law and equity as distinguished and defined in your act. 

Mr. Lehmann. That, however, is predicated upon your Consti¬ 
tution and your statutes? 



14 


REFORMS IN LEGAL PROCEDURE. 


Mr. Moon. State statutes, of course. 

Mr. Lehmann. You must preserve, in whatever form you adopt, 
the substantial distinction between law and equity. That requires, 
of course, that if there is a common-law right simply involved and 
the parties insist upon it you must accord them the trial by jury. 
You can have the trial by jury in a case even though you do not 
label it “ at law,” and there is not anything in the Constitution of the 
United States, and there is not anything in any decision construing 
the Constitution, as distinguished from the statute which preserves 
anything whatsoever in the way of form of procedure. Your consti¬ 
tutional limitations relate to the substance. You have, of course, 
the amendment preserving the right of trial by jury. 

Mr. Moon. I think that these cases generally arise where that 
right is denied by the blending of the true form. 

Mr. Lehmann. Where the right is denied, but not in Iowa, Mis¬ 
souri, and Nebraska, and other States. I had a case early in my 
practice in Nebraska in which there seemed to be involved the exam¬ 
ination of a long account, and it was necessary that that should be 
referred to a master under the equity procedure, but I took the view' 
that it was simply a matter of common-law right, and made an in¬ 
vestigation with respect to that, and I find no distinction between 
the rulings in the Federal courts and in the State courts. You must 
allow the trial by jury and you must give to the verdict of the jury 
where a right of trial by jury exists as a matter of right the effect 
of a common-law verdict and not simply of a verdict in chancery, 
which the chancellor can set aside, no matter upon what ground he 
does it—but you must do that. You can have a dozen issues in one 
case; six of them may be legal and six of them may be equitable, 
and you can try the legal issues in a legal way and the equitable 
in an equitable way, and when you have done that you have respected 
the substance of the Constitution; and it is not necessary and the 
Constitution does not preserve the forms; and in these Western 
States you must bear in mind that they also have that provision se¬ 
curing the right of trial by jury, some of them in one form and some 
in another—some that the right of trial by jury shall remain invio¬ 
late, some that the right of trial by jury shall not be taken away. 
That is entirely consistent with this blending of legal and equity ad¬ 
ministration in the same forum, b}^ the same judge, and in the same 
action. We have it in Missouri; we have it right along there. We 
will try one part of the case at law and the other part at equity, and 
it works perfectly. 

Mr. Moon. In New York, where this great movement began in 
1908, they had to change the constitution of their State. 

Mr. Lehmann. In New York, where this great movement began, 
the courts deliberately began to nullify the work of David Dudley 
Field, and the construction that is displayed there is one that is not 
very much to be commended. They harp on that rule of construc¬ 
tion, which is not a true rule, that any statute in derogation of the 
common law is to be strictly construed, and makes a fetich of the 
common law, makes a fetich of the very thing that it is the business 
of legislation to correct, and so they virtually nullify the code of 
David Dudley Field. And I would not be, with all due respect to 
Mr. Littleton, very much influenced by the decisions upon the code 


REFORMS IN LEGAL PROCEDURE. 15 

In the State of New York, because they did not respect, as they 
ought to have done in the legislative action, the legislative intent. 

Mr. Moon. I think one of the most serious reflections against the 
code pleadings is the voluminous decisions in the State of New York 
equity. 

Mr. Littleton. I have had so many occasions to dissent from the 
court’s holding that I can not feel any offense. 

Mr. Lehmann. Undoubtedly Mr. Moon is right about that, but 
the courts must get away from that idea that this is in derogation of 
the common law and therefore it is to be strictly worded. There is 
only one rule of construction of statute, and that is the intent. 

Mr. Moon. I am prepared to say it is a consummation devoutly to 
be wished if it can be brought about. 

Mr. Lehmann. It can be brought about in part by legislative 
action and in part by judicial education, and the last is quite as 
requisite as the first. 

Mr. Nye. Namely by the bar, I suppose. 

Mr. Lehmann. The bar needs it, but, as Mr. Wheeler has pointed 
out, there is a difficulty presented to the lawyer. He has perhaps 
no right to prescribe for his client what the law is or what the meas¬ 
ure of justice is to which the client shall be entitled. The client 
may say “Courts are constituted for that purpose. You have no 
right to set up your standard of ethics of justice to determine my 
rights.” 

Mr. Nye. But the bar has the right to subscribe a simple, direct 
method of reaching justice for him, instead of making justice a 
millstone to hang around the neck of people. 

Mr. Lehmann. And that is what I am trying to do. 

Mr. Nye. I understand it, and I am for this bill or any other bill 
that will simplify legal proceedings and give litigants a right to 
come to a court without the most learned and profound musty 
lawyer in the world. 

Mr. Lehmann. Let me tell you where all these bills are weak— 
all of them. They are simply scratching the surface, and they are 
commendable simply because they are a step in the right direction. 
Our formal law is crystallized too much, and too rigid—cast in a 
legislative form when it all ought to be a matter of rule of the court; 
that is the fundamental reform. 

Mr. Moon. I know that has been recommended, but would you 
recommend that we should omit all matters of procedure to rules of 
the court? 

Mr. Lehmann. I should recommend that, except that you place 
a very few fundamental ones. I would see the day when it could 
be said of the American court, as it can be said of the English court 
and was said by Rogers, that they had so far proceeded in the reform 
of the legal procedure that it could be truthfully stated that no 
litigant of ordinary sagacity would fail in his case by reason of any 
mistaken steps in his procedure, and it can be done here. 

Mr. Moon. England has pretty nearly done it—almost gone to 
that point? 

Mr. Lehmann. Yes, sir. 

Mr. Moon. I want to say to you that after mature deliberation, 
so far as I am concerned, I am perfectly willing to trust the courts, 


16 


REFORMS IN LEGAL PROCEDURE. 


but the general spirit of unrest and distrust that exists in this coun¬ 
try to-day, I think it will make it impossible to get there. 

Mr. Lehmann. It may make it difficult to do now, but that dis¬ 
trust and that unrest has come from the complexity of our procedure* 
and we have made a lucrative mystery of our business. 

Mr. Dodds. That is what I was going to say. If it was not for 
that we would not have that unrest and disrespect. 

Mr. Moon. I think that if you will look at our Federal procedure 
you will find it is an absolute patchwork all the way through. 

Mr. Lehmann. Certainly. The procedure in most of our States is 
the same thing. The procedure has been made by lawyers for law¬ 
yers. We have a statute in Missouri whereby in the trial of a crim¬ 
inal case Judge Rucker may be sitting trying some man. I ask 
various instructions, which are made, and he gets over those diffi¬ 
culties by references as he thinks proper; and then, in addition to 
that, I say, “ Now, Judge, I want you to instruct on all of the law 
of the case.” “ What part of the law have I omitted? ” “ That is 
your business, sir, not mine. I now request you to instruct on all of 
the law of the case.” He does not know what else to instruct. The 
case goes to the jury. The man is convicted, and I have got from 
then until I argue the case to find out something that neither he nor I 
thought about on which to reverse the case. 

Mr. Moon. Did not they reverse the case there of homicide, first 
degree, because the prosecuting attorney did not charge the indict¬ 
ment that it was “ against the peace and dignity of the Common¬ 
wealth,” omitting the word “ dignity ” ? 

Mr. Lehmann. It is done in the case of rape, bribery, and in one 
other. 

Mr. Littleton. On the other side, is it not a fact that while the 
English courts have gone a great distance toward eliminating com¬ 
plications of pleadings, that much of our limitations in some sections 
and much of the complication and much of this delay and much of 
the thing about which one of these bills is a remedy, grows out of 
the fact that the judge below treats the trial as an incident and the 
verdict asHhe object, and puts you through whip and lash until you 
have to aiftbush and sharpshoot in order to save anything in the 
trial? 

Mr. Lehmann. We deal with verdicts in a very peculiar way, if 
that is what you refer to. We respect them very much in some ways 
and we disregard them in others. You have a complex procedure 
and you give opportunity to the man who is skilled in your procedure 
and he plays the game, not for the justice of the case, but tries a case 
for “ error; ” that is a phrase current in the profession—“ try it for 
error ”—that is, try it over the heads of the jury altogether; try it 
for the court of appeals. 

There is too much opportunity—there is too much room for that 
sort of thing—and it discredits the profession, Mr. Littleton. I 
have been practicing for 40 years, and I am too old to go into any¬ 
thing else, and I must say that I am ashamed to acknowledge that 
in the manner of procedure in the 40 years I have been a lawyer 
there has not been any advance. 

Mr. Moon. Speaking about playing according to the rules re¬ 
minds me of an absolute fact. A friend of mine was appointed to 
the judiciary in Pennsylvania, and he was a very conscientious fel- 


REFORMS IN LEGAL PROCEDURE. 


17 


low. He had never tried a case, and he felt as though the weight 
ot the universe was resting upon him. The old president judge no¬ 
ticed that he was perturbed, and said, “ You do not need to bother 
yourself about it at all. The case comes before the court, and if 
a fellow does not play it according to the rules he loses, and if he 
does play it according to the rules he has got a chance. That is 
all you are concerned about—to see that he plays it according to 
the rules.” 

Mr. Lehmann. The trouble is that the client is not skilled in the 
rules, and if the game is not played “ according to the rules ” the 
penalty is paid by the man. The thing was put well by a Kansas 
lawyer at a meeting of our Missouri Bar Association. He said: 
u We have two men, neighbors, who have a controversy. It may be 
over the right to a piece of land. That is the controversy; that is 
the quarrel between the two. 

u They can not adjust it, and so they come to the courts to have 
that quarrel adjusted and that controversy settled. Each one gets 
a lawyer and the suit is brought. The moment the suit is brought 
another controversy arises, not as to who owned that piece of land, 
but as to whether the suit is properly brought—a quarrel not be¬ 
tween the parties, but a quarrel between the lawyers—and the suit 
may go to the end and be disposed simply on the controversy be¬ 
tween the lawyers, and the controversy between the parties may 
never be touched.” 

Mr. Thomas. Does the code provide what suits shall be brought 
at law and in equity? 

Mr. Lehmann. No, sir. 

Mr. Thomas. Why should not it? Should not that settle the 
matter ? 

Mr. Lehmann. No. 

Mr. Thomas. Why not? 

Mr. Lehmann. Because you could only make a very general rule 
and under your constitutional limitation that thing which is essen¬ 
tially equitable can not, without amendment to the Constitution, be 
made legal and that which is essentially legal can not be made 
equitable. The only way in which there has been a change of equi¬ 
table jurisdiction growing out of this fact—the one principle of 
equitable jurisdiction—that its jurisdiction shall not attach where 
there is an adequate remedy at law and by the extension of legal 
procedure, as, for example, the right to consult the opposite party 
and to examine as upon cross-examination. 

Mr. Moon. Essentially original and absolutely equitable. 

Mr. Lehmann. That was absolutely equitable and was accom¬ 
plished through a bill of discovery. I doubt whether in any State of 
the Union you could found equitable jurisdiction simply upon the 
thing discovered, because the answer woud be, “ You have an ade¬ 
quate remedy at law by your right to examine the party.” In that 
way we have limited equity jurisdiction, but I assume, under con¬ 
stitutional provisions which intrench both law and equity as dis¬ 
tinctive jurisprudence, you could not take away the jurisdiction over 
torts and various other things. 

Mr. Moon. Fraud? 


32966—L 


-2 


18 


REFORMS IN LEGAL PROCEDURE. 


Mr. Lehmann. Fraud and those things which are the funda¬ 
mentals of equity jurisprudence. 

Mr. Thomas. Could not the equity of those actions be defined 
within the limits of the Constitution ? We do it in our State. They 
are defined by code in Kentucky. The code states what action shall 
be brought in law and what action shall be brought in equity. 

In Kentucky actions of which courts of chancery had jurisdiction 
before the 1st day of August, 1851, may be equitable, and actions 
of which such jurisdiction was exclusive must be equitable, and all 
other actions must be at common law, or ordinary, as they are termed 
in Kentucky. Equitable actions are such as actions on return of 
u no property ” and for “ discovery,” by surety against principal 
before debt matures and after maturity of debt, for sale of real 
property of infants and persons of unsound mind, and joint owners, 
to settle trust estates and estates of deceased persons, to grant di¬ 
vorce and alimony, to grant injunctions, to partition land and allot 
dower, and to enforce liens on real and personal property, and a 
number of other things which I do not now recall. I would have 
to refer to the law in force prior to 1851 to set out fully equitable 
jurisdiction in Kentucky, and I do not have that law at hand. 

Mr. Lehmann. How does it define that? 

Mr. Thomas. Certain actions at law and certain actions in equity. 

Mr. Lehmann. Does it say actions for the recovery of money only 
or does it actually classify assumpsit and trover ? 

Mr. Thomas. Certain actions shall be brought at law and all other 
actions shall be brought in equity—shall conform to the Constitu¬ 
tion in that respect. Why could not that be done, and then an attor¬ 
ney who brought an action at law that ought to have been brought 
in equity could simply have his case transferred by an order of the 
court to equity? 

Mr. Lehmann. You have, your honor, a part of that in the bill 
here, for a transfer from one docket to another. 

Mr. Thomas. The court making the order transferring all the 
pleadings, and if any other pleadings were needed let those be filed 
by leave of the court. 

The Chairman. Our time is growing pretty short. 

Mr. Moon. I think we ought to hear this at length. 

The Chairman. We can come back after lunch and hear other gen¬ 
tlemen. 

Mr. Moon. I would like to hear Mr. Lehmann through. 

The Chairman. Would you pardon me to finish the statement? 
The committee has been very indulgent. 

Mr. Lehmann. 1 will have to ask to be excused. I must go to 
court at 12 o’clock. 

Mr. Moon. I was going to say that I desired to ask Mr. Lehmann 
a question in regard to the three particular bills that the American 
Bar Association, through Mr. Wheeler, has presented to the com¬ 
mittee. H. K. 16459, that bill I do not believe you have touched 
on so far in your remarks. [After a pause.] I see; I have it. 
That is the one that refers to the Ives case. 

The Chairman. Yes. 

Mr. Lehmann. I am not prepared to express an opinion about 
that. I quite agree with Mr. Moon that we had better look into the 
foundations of that. I can see one reason why there has been a 


REFORMS IN LEGAL PROCEDURE. 


19 


difference there: That the appeal allowed on the one side and not 
on the other. If I am claiming that a statute of the State is in 
violation of the Federal Constitution and that statute is upheld, 
then, if my contention is right, I have been denied a right guar¬ 
anteed to me by the Federal Constitution, and naturally I should 
have an appeal to the Federal tribunal to secure the enforcement of 
his right given by Federal authority. 

If, however, in the case of the plaintiff who asserts the right under 
a State statute which is contended is unconstitutional as violating 
the Federal law, and the State court so holds, the plaintiff has not 
been denied a right given by the Federal Constitution, but has been 
denied a right only given by the State law. I see that distinction. 
I am not prepared to say that that is a sufficient reason for not 
allowing the appeal, because I can see this state of affairs: You take 
that kind of law that is involved in that. Suppose that the Missouri, 
Iowa, and Nebraska Legislatures enacted such laws and the State 
courts held the laws to be valid and then they were taken to the 
Supreme Court of the United States and the Supreme Court of the 
United States said that they were valid and did not violate the Fed¬ 
eral Constitution. Then, the case arose in New York and the New 
York Court of Appeals would hold that the statute was invalid and 
as violating the Federal Constitution, right in the teeth of con¬ 
struction of the Constitution by the Supreme Court of the United 
States. It certainly would seem there ought to be some remedy 
for that state of affairs, but I should like to look into the matter— 
the matter was suggested to me for the first time less than an hour 
ago. 

The Chairman. In that connection, as a result of your investiga¬ 
tion, would you please give the committee the benefit of it ? 

Mr. Lehmann. Yes, sir. 

The Chairman. You can reduce it to writing and address it to 
the chairman of the committee. 

Mr. Lehmann. Yes, sir; I would be very glad to do that. 

The Chairman. Then, in regard to bill H. R. 16459, recurring to 
that ? 

Mr. Lehmann. Yes, sir. 

The Chairman. Some time ago you addressed to the chairman of 
the committee a letter approving H. R. 12365. You have not a copy 
of it there, have you? 

Mr. Lehmann. Yes, sir; I have it. 

The Chairman. You observe the first section of that bill is in the 
following language [reading] : 

That in any suit in equity instituted in the courts of the United States 
wherein it shall be decided prior to final decree that the complainant has a 
complete and adequate remedy at law the complainant may, at his election, 
upon such terms as the court may impose, cause the same to be transferred to 
the law docket of the court, there to be proceeded with as if originally insti¬ 
tuted as a suit at law. 

I desire to say in that connection that that bill was drawn by me 
last summer in^the light and as a result of a year or more corre¬ 
spondence with two circuit judges, calling attention to the necessity 
for such legislation, and it seems somewhat in line with one of 
these bills on the same subject that the American Bar Association 


20 


REFORMS IN LEGAL PROCEDURE. 


has had me to introduce, and which has been referred to this morn¬ 
ing. The bill which has been under discussion which I introduced 
at the instance of the American Bar Association has opposition. 
Former Senator Faulkner and others here are in opposition to that 
particular bill, but none of them have expressed any opposition, so 
far as I know, to this particular bill H. R. 12365, and what I wanted 
to know from you was if you still adhere to your opinion that that 
bill was a good bill and should pass, in your opinion? 

Mr. Lehmann. Oh, yes, sir; I do not change that at all. I have 
not compared the two bills with each other. I was brought over 
here rather hastily, and I see now two bills that were laid in some 
measure to the same subject. I am in favor of either of them. 

The Chairman. I called attention to it so that it may go into the 
record that this bill H. R. 12365, which was introduced on July 8, 
1911, and I reintroduced it on January 18, being now H. R. 18236, 
and made only the changes as you will observe in the second section 
of the bill, by striking out the word “ circuit ” before “ courts ” and 
inserting “ districts to conform with the duties.” That is the only 
change made. 

Mr. Lehmann. Oh, yes; I must go to the court at 12 o’clock, Mr. 
Chairman, if we can be excused now. 

STATEMENT OF HON. CHAS. J. FAULKNER, OF WASHINGTON, D. C. 

Mr. Faulkner. I desire to correct to some extent the remarks 
of the chairman, and also to state the reason of my presence here. 
I am instructed by my client, who formerly requested me to oppose 
this measure found in bill 16460, to state that they did not desire me 
to appear for the purpose of making opposition to it. But I ap¬ 
pear solely for this purpose and this alone: To file with the com¬ 
mittee, with their permission, the protest and very short brief of 
Joseph I. Doran, of the Norfolk & Western, and Theodore W. 
Reath, general solicitor of the Norfolk & Western, against the bill 
known as 16460, and partially, if not entirely, indorsing bill 12365, 
which was offered by the chairman to Congress last summer. 

The Chairman. And reintroduced at this session with the change 
striking out “ circuit court ” and inserting “ district court,” being 
now H. R. 18236. 

Mr. Faulkner. Mr. Doran and Mr. Reath are very anxious that 
their protest shall go into these hearings. In their protest they give 
very strong reasons for the opposition they have taken, and they 
analyze to some extent the report of the bar association which has 
been referred to here by Mr. Wheeler. With the permission of the 
committee, therefore, I will ask leave to file that, that it may be 
placed in the record as a part of the same. 

Mr. Wheeler. May I ask the chairman if Mr. Faulkner will oblige 
us with a copy of this brief ? 

Mr. Faulkner. I can, Mr. Chairman. 

The Chairman. The brief will be printed as a part of the hearings, 
and the committee will be very glad to have you file a brief if you 
like. 

Mr. Wheeler. We should appreciate that and we shall be very 
glad to do that. 


REFORMS IN LEGAL PROCEDURE. 


21 


The brief of Joseph I. Doran and Theodore W. Reath, submitted in 
their behalf by Mr. Faulkner, is as follows: 

Brief of Joseph I. Doran and Theodore W. Heath. 

IN THE MATTER OF ALLOWING AND REGULATING AMENDMENTS IN JUDICIAL PRO¬ 
CEEDINGS IN THE COURTS OF THE UNITED STATES. 

The bill H. R. 12365 is in two sections. The first section regulates the law 
and equity practice, and is as follows: 

“ That in any suit in equity instituted in the courts of the United States 
wherein it shall be decided prior to final decree that the complainant has a 
complete and adequate remedy at law the complainant may, at his election, upon 
such terms as the court may impose, cause the same to be transferred to the law 
docket of the court, there to be proceeded with as if originally instituted as a 
suit at law.” 

In less drastic form this is somewhat the sole alteration which is proposed 
to be made by the bill known as S. 4029, which proposes to add to chapter 11 of 
the judicial code two new sections, as follows: 

“ Sec. 274 A. In case any of said courts shall find that a suit at law should 
have been brought in equity or a suit in equity should have been brought at law, 
the court shall order any amendments to the pleadings which may be necessary 
to conform them to the proper practice. Any party to the suit shall have the 
right at any stage of the cause to amend his pleadings so as to obviate the ob¬ 
jection that his suit was not brought on the right side of the court. The cause 
shall proceed and be determined upon such amended pleadings. All testimony 
taken before such amendment shall stand as testimony in the cause with like 
effect as if the pleadings had been originally in the amended form. 

“ Sec. 274 B. In all actions at law equitable defenses may be interposed by an¬ 
swer, plea, or replication without the necessity of filing a bill on the equity 
side of the court. The defendant shall have the same rights in such case as if 
he had a bill embodying the defense or seeking the relief prayed for in such 
answer or plea. Equitable relief respecting the subject matter of the suit may 
thus be obtained by answer or plea. In case affirmative relief is prayed in such 
answer or plea the plaintiff shall file a replication. Review of the judgment or 
decree entered in such case shall be regulated by rule of court. Whether such 
review be sought by writ of error or by appeal, the appellate court shall have 
full power to render such judgment upon the record as law and justice shall 
require.” 

This last quoted bill is the one which a special committee of the American 
Bar Association reported favorably as a bill, “ To prevent delay and unnecessary 
cost of litigation.” (See report presented at the meeting at Boston, Mass., Aug. 
29, 1911, pp. 14-16, and for the bill, pp. 23-24.) The report of the committee 
justifies the bill by the argument (p. 15) : 

“ If the pleader by mistake has put the words ‘ at law ’ in his pleading when 
he should have put the words ‘ in equity ’ or ‘ in admiralty,’ it should be the duty 
of the judge to make the amendment on the spot.” 

Again, speaking of the code system, at page 16 ; the report says: 

“ Notwithstanding these alarming judicial statements legal and equitable rem¬ 
edies continue to be administered under the codes; legal principles and equitable 
principles continue to be observed. Many think that they are more conveniently 
administered and observed under an approximately uniform procedure than 
they were in those days when a mistake in the choice of a proceeding threw the 
plaintiff out of court, even if it did not finally defeat his right.” 

If the bills accomplish no more than to permit transfer from the law to the 
equity side in such a case as that suggested by the committee’s report where 
there was merely a clerical error in naming the writ, declaration, or other 
pleading, the bill would be unnecessary, for this could readily be accomplished, 
as the committee points out at page 17, by a rule of the Supreme Court in 
equity; and surely Congress ought not to be troubled to pass an act as to a 
matter which can "and should be covered by a rule of court. 

But the bills—and particularly S. 4029—run far beyond curing a mere clerical 
•error of description. The proposed section (274 A) provides that in case a court 
shall find that a suit at law should have been brought in equity or the reverse 
“ the court shall order any amendments to the pleadings which may be necessary 
to conform them to the proper practice.” 


22 


REFORMS IN LEGAL PROCEDURE. 


Proceedings at law or in equity are essentially different in origin, nature, and 
object. The two New York cases (Leroy v. Marshall, 8 How. Pr., 373, and 
Railroad v. Schuyler, 17 N. Y., 592) cited on pages 15 and 16 of the report of 
the special committee of the American Bar Association are correct. The 
equitable proceedings were devised to cover those cases wherein for some 
reason a court of law could not administer justice. Hence there is a difference 
in the essentials of pleading which must ever be maintained. We do not under¬ 
stand that the advocates of these bills dispute this. Yet they urge that the 
courts shall be directed to do an impossibility, namely, order an amendment to 
pleadings at law to convert them into pleadings in equity or the reverse, when, 
in point of fact, neither is germane to the other. An attempt to abolish dis¬ 
tinctions so fundamental between these great fields of jurisprudence by an act 
so indefinite in its terms and summary in its language can only cause years of 
confusion in practice. Even to attempt to criticize the bill is to realize the 
impossibility of foreseeing its effects in practice. It is not unfair to say that 
one of its effects will be to impose upon the court the duty of amending and 
curing the careless work of the incompetent pleader. 

If the bill S. 4029 should pass what would be the result? Instead of well- 
understood precedents and forms well known and easy to handle by any com¬ 
petent lawyer we shall momentarily have a complete breakdown of the distinc¬ 
tions and slowly the formation, at the expense of litigation to acquire precedents, 
of an entirely new system based, however, upon the same general principles, 
because those principles are changeless and have been evolved out of experience. 

After all such legislation is at best contrived to protect the few careless or 
incomptent practitioners from the consequences of their fault. Distinctions and 
forms, valuable in arriving at and effectually administering justice either at law 
or in equity, are to be sacrificed in order to save the few blunderers. The same 
argument, pushed to what was once well described by Mr. Justice Holmes as a 
dryly logical conclusion, would require the repeal of statutes of limitation, 
because in their operation they foreclose just claims carelessly assorted or 
neglected. The idea of such legislation seems to be a hasty generalization from 
the few cases wherein injustice seems to have been done and the sacrifice of 
matters which are of value to save those few persons from the consequences of 
their own fault. 

As to codes, we venture the assertion that lawyers who have had the oppor¬ 
tunity of observing court procedure in code States and in States where the 
common-law procedure obtains have usuallv reached the conclusion that the code 
proceedings, instead of simplifying litigation, have created the necessity for a 
reconstruction of the very same controlling principles for the reasons already 
stated—that they are changeless and inhere in the subject. In Pennsylvania 
the practice act of 1887 was intended to simplify pleading and practice, but, as 
one of the great judges of Pennsylvania afterwards said, did no more than 
substitute for the orderly narration or declaration the telling of the story as 
one old apple woman would tell it to another. And, at last, the courts in Penn¬ 
sylvania had to come back to the common-law principles. 

Thus, in Emmens v. Gebhart (7 Pa. County Court Rep., 522) (1890), Schuyler,. 
P. J., said at page 525: 

“ Only the forms of special pleading have been abolished; its substance re¬ 
mains and must ever remain.” 

And in Fritz v. Hathaway (135 Pa., 274) (1890), Mitchell, J., said at 

page 280: 

“ The act is unwise and is founded on the erroneous and superficial view 
that, by abolishing technical forms it can get rid of distinctions inherent in 
the nature of the subject, but it would be doing injustice to the purpose of its 
framers to hold that it w T as meant to sanction mere looseness of pleading. Ac¬ 
curacy and technical precision have no terrors except for the careless and the 
incompetent, and the act of 1887 was not intended to do away with them. As 
to ail matters of substance—completeness, accuracy, and precision are as neces¬ 
sary now to a statement as they were before to a declaration in the settled 
and time-honored forms.” 

To some lawyers and to most laymen it appears as though the distinctions 
between law and equity, and many other actions of apparently formal pleading, 
are mere technicalities. But nearly all of the so-called technicalities of which 
laymen complain and many of those of which some lawyers complain are really 
essentials in the orderly and right administration of justice. The decision of 
the supreme judicial court of Massachusetts in the case which changed William 
Cullen Bryant from an indifferent lawyer into a fair poet is of interest in this 


REFORMS IN LEGAL PROCEDURE. 


23 


connection, though the case did cause Bryant to leave the bar and take up a 
literary career. That case is Bloss v. Tobey (2 Pick., 320) (1824), and was an 
action of slander. The declaration in the first count charged that the de¬ 
fendant did falsely and maliciously say of the plaintiff, “ There is no doubt in 
my mind that he (plaintiff) burnt it (his store) himself.” And in the second 
count the same phrase, coupled with the further phrase, “he (plaintiff) would 
not have got his goods insured if he had not meant to burn it ” (the store). 

For lack of a colloquium showing that an illegal act was charged in the al¬ 
leged slander, and showing the circumstances under which the words were 
spoken, this pleading was held bad after verdict, and properly so, for if any 
other rule had been announced the result would have been to allow recovery to 
that particular plaintiff, but a safeguard of litigation would have been lost, 
namely, the safeguard that all the essential circumstances of the cause of action 
shall be shown in the declaration in order to warn the defendant of the cause 
of action he will be called upon to meet and enable him to prepare his case, 
summon the necessary and proper witnesses, etc. 

The courts of the United States are already empowered to take care of the 
subject matter of the proposed bills in so far as the orderly and proper admin¬ 
istration of justice requires or permits. (See Schurmeier et al. v. Connecticut 
Mutual Life Ins. Co., 171 Fed., 1, and the report of the American Bar Associa¬ 
tion’s special committee at p. 17.) The passage of any bill on the subject is 
unnecessary and unwise, and some of the bills suggested would be mischievous. 

Respectfully submitted. 

Joseph I. Doran. 

Theodore W. Reath. 

January, 1912. 

Mr. Floyd. I move we adjourn. 

Mr. Dodds. Is that to be printed in the record ? 

The Chairman. If that is the desire. 

Mr. Dodds. I think if that is to be printed in full we should print 
it all. 

The Chairman. Ought to be a part of the proceedings of the com¬ 
mittee ? 

Mr. Dodds. Yes. 

The Chairman. It will take that course, without writing it out; 
let this go in the proceedings—the two of them. 

The report of the special committee of the American Bar Associa¬ 
tion and the brief of the American Bar Association submitted by 
Mr. Wheeler are as follows: 

Report of the Special Committee to Suggest Remedies and Formulate Pro¬ 
posed Laws to Prevent Delay and Unnecessary Cost in Litigation. 

[To be presented at the meeting of the American Bar Association, at Boston, Mass., 

August, lOll-.j 

To the American Bar Association: 

The special committee appointed at the meeting of this association in 1907, 
and continued at each annual meeting since then, was charged with the duty 
of considering carefully alleged evils in judicial administration and remedial 
procedure, and suggesting remedies and formulating proposed laws. 

We were authorized at the last meeting to present to Congress at its next 
session the bills heretofore reported by the committee and recommended by this 
association, in such form as to obviate as far as possible the objections thereto 
that have been taken in Congress, but retaining the essential principle of the 
bills heretofore recommended by the association. These bills were specifically 
recommended by the President in his annual message, December, 1910 (p. 44). 

The association at that meeting approved the recommendation of our com¬ 
mittee respecting the practice in admiralty, and we were instructed to bring the 
subject to the attention of the Supreme Court of the United States and to re¬ 
quest that honorable court to adopt a rule in admiralty w T hich should direct 
that the testimony in admiralty cases be taken in open court, subject to the 
provisions of the statute in regard to depositions de bene esse. 


24 


REFORMS IN LEGAL PROCEDURE. 


We were also authorized to consider a general practice act and to report 
thereon at this meeting. In this connection two resolutions were referred to us 
for consideration. The first of these was presented by Mr. Thomas Wall 
Shelton, and is as follows: 

“ Resolved , That in whatever form of ifieading that may be adopted, there 
shall be preserved the common-law limitation upon the court that whatever is 
not juridically presented can not be judicially determined.” 

The other resolution was offered by Mr. Ernest T. Florance: 

“ Resolved , That the committee to suggest remedies and formulate laws, etc., 
be instructed to consider the preparation of a bill providing for the abolition of 
difference of forms of procedure between actions at law* and cases in equity 
in the Federal courts.” 

1. In accordance with the instructions of the association we presented to Con¬ 
gress at its last session, beginning in December, 1910, the bills which had been 
recommended and approved by this association, which are to be found in full 
on pages 7 to 10 of our last report (pp. 620 to 623, vol. 35, for 1910). The 
bills were referred in each House to the Committee on Judiciary. We had 
a hearing before the full committee of the House of Representatives and before 
the subcommittee of the Senate consisting of Senators Nelson, Dillingham, and 
Overman. We also had many interviews and much correspondence with indi¬ 
vidual members of both committees. The question whether the amendments 
to procedure proposed in the first two sections of the bill would interfere with 
the province of the jury was debated very fully at the public hearing and in 
discussions with individual members. We endeavored to convince the com¬ 
mittees to whom the matter was referred, that so far from impairing the value 
of a trial by jury the amendments proposed tended to increase its value and to 
promote the determination of causes upon the merits rather than upon tech¬ 
nical objections which do not affect the merits, and to which juries pay no 
attention. We pointed out that by giving more finality to the verdict of a 
jury, rendered when the facts of a case are fresh in the memory of witnesses, 
and permitting the appellate courts to pass directly upon the questions of law 
involved, without the necessity of ordering a new trial, we would make it possi¬ 
ble to terminate every cause upon its real merits, present these merits fairly to 
the court, and put an end to the litigation as soon as this can be done consist¬ 
ently with giving a full and fair hearing to both parties. 1 

We could not discover that there was any serious objection in either com¬ 
mittee to these two sections except that arising from a conservatism which is 
reluctant to make any change whatever. Nevertheless our efforts failed to ob¬ 
tain a report to the House or the Senate from the full committee of either 
body. The subcommittee of the Senate reported the bills to the full committee 
of that body. 

There were also objections made to the third, fourth, fifth, and sixth sections 
of the bill to regulate judicial procedure. These relate to writs of error and 
appeals in criminal cases and habeas corpus proceedings. Some members of 
each committee were unwilling to put any limitation whatever upon the right 
of appeal in criminal cases. 

Meanwhile the pending bills had attracted much attention in the House of 
Representatives. Many Members had become interested in them. It will be 
remembered that there was pending in the House of Representatives a bill 
which had been originally prepared by the Commissioners to Revise the Statutes 
of the United States, and which had been referred to a committee of the 
House of Representatives known as the Committee on the Revision of the 
Laws. Of this committee, Hon. Reuben O. Moon, of Pennsylvania, was chair¬ 
man. He was also a member of the Judiciary Committee. When this measure 
was first under consideration before a joint committee of both Houses in 1906, 
a meeting of the lawyers of New York who practice in the Federal courts was 
held, at which several amendments were agreed upon and suggested to the 
joint committee. Among the amendments which were suggested at that time 
there were six which substantially proposed the reforms in procedure which 
were afterwards recommended by this association and embodied in the bill to 
regulate the judicial procedure of the United States already referred to. 

These amendments in 1906 were drawn so as to correspond to the bill in the 
form in which it was then before the joint committee. It seemed, however, 
that there was no likelihood of this bill being seriously taken up by Congress, 
and in the original report of this committee we thought it expedient to recom¬ 
mend these amendments as separate measures drawn with reference to the Re- 


1 Church v. Hubbart (2 Cranch, 232). 



REFORMS IN LEGAL PROCEDURE. 


25 


vised Statutes as tliey then existed. But the unexpected happened. The new 
Committee of the House of Representatives on the Revision of the Laws re¬ 
ported to the House, with some amendments, the bill which had been drafted by 
the commissioners, and succeeded in getting their report upon the calendar in 
such a form that it had the right of way, and did receive during several suc¬ 
cessive weeks, on the days set apart for the reports of committees, very full 
consideration. In view of this fact your committee conferred with several 
members of the Committee on Revision of the Laws, and especially its chair¬ 
man, Mr. Moon. It was agreed that when section 254 of the judiciary act 
came up for consideration, the first two sections of the association’s bills, com¬ 
bined into one section, should be moved as an amendment to the reported bill. 

Meanwhile Mr. Madison, of Kansas, had become so much impressed by the 
arguments presented in support of the association bill, that after conference 
with your committee he introduced in the House as a separate bill, a section 
embodying the first two sections of the association bill in the form in which 
they had been agreed to before the Judiciary Committee. After considerable 
discussion this bill passed the House unanimously. It went to the Senate, was 
referred to the Judiciary Committee, but all the efforts of your committee were 
unavailing to procure a report upon it. The expressions of opinion from in¬ 
dividual Members of the Senate were so favorable that we had reason to be¬ 
lieve that if the bill could have been got out of committee it would have passed 
the Senate. The other method which had been planned to bring the bill before 
the Senate failed, because of the fact that there was so much debate in the 
House upon the early sections of the Judicial Code (as it is designated in sec¬ 
tion 296), which relate to judicial districts and to the jurisdiction of the dis¬ 
trict courts, that section 254 was not reached for consideration. The code, with 
numerous amendments which were made in the House, was finally passed un¬ 
der a suspension of the rules. The Senate meanwhile had passed the code in a 
different form. They both went to a conference committee and the Judicial 
Code finally passed in the form with which the association has already become 
familiar. 

We may say that as this code was drawn by the Commissioners on the Re¬ 
vision of the Statutes it effected very little change in the practice of the 
Federal courts, with one single important exception. It did consolidate the 
courts of original jurisdiction into one court, to be known as the district court 
of the United States in each judicial district, and it did abolish the circuit 
courts. Ths is in accord with the recommendations of our report of 1910. As 
drawn by the commissioners it failed entirely to provide for the numerous in¬ 
stances in which it is desirable to have an order made by one judge operative 
in the whole circuit. For example, in railroad foreclosures it is of great im¬ 
portance that a receivership should extend throughout the entire circuit in 
which the railroad runs. This defect was, however, corrected in the House, 
the amendment was adopted in conference, and is included in the bill as finally 
passed and signed by the President. 

We append hereto (schedule A) a copy of the bill recommended by your 
committee, which passed the House, and we recommend that the committee be 
authorized to present this bill at the next session of Congress in the form in 
which it passed the House as an amendment to section 269 of the Judicial Code, 
and urge its adoption upon both Houses of Congress. 

2. The sixth section of the bill recommended by this association is incor¬ 
porated in the judicial code. Section 12S of this code gives to the circuit 
courts of appeal jurisdiction to review by writ of error the judgments of the 
district courts in all criminal cases, including capital cases, and makes their 
judgment final, except in cases involving constitutional questions. 

We also recommend that the remaining sections of the bill to regulate the 
judicial procedure of the courts of the United States, recommended by this asso¬ 
ciation in 1910, be embodied in a separate bill and recommended for adoption 
by Congress. 

3. It will be of interest to the association to put on record some results of 
the agitation for a change in the method of dealing with error alleged to have 
been committed by trial courts. In courts of justice in this country, quite apart 
from any legislation, the change is very manifest. 

For example, in Vicksburg & Meridian Railroad Co. v. O’Brien (119 U. S., 99, 
103; 30 Law. Ed., 299, 300), decided November 1, 1886, Mr. Justice Harlan 
said : 

“ While this court will not disturb a judgment for an error that did not oper¬ 
ate to the substantial injury of the party against whom it was committed, it is 
well settled that a reversal will be directed unless it appears, beyond doubt, 


26 


REFORMS IN LEGAL PROCEDURE. 


that the error complained of did not and could not have prejudiced the rights 
of the party.” 

Waite, C. J. f and Field, Miller, and Blatchford, JJ., dissented. 

The dissent on the part of these four eminent judges has received the ap¬ 
proval of the court in subsequent cases. For example, in Standard Oil Co; v. 
Brown (218 U. S., 84, 86; 54 Law. Ed., 945, 946), decided May 31, 1910, the 
court said: 

“The rule is familiar and elementary that the pleadings and proof must 
correspond, but a rigid exactitude is not required.” 

The court held that errors in the charge or refusal to charge would not be 
considered as reversible error when it was plain that the issues had been 
fairly presented to the jury. 

The reason for the change is well stated by the Court of Appeals of the State 
of New York in People v. Gilbert (199 N. Y., 28), decided in 1910: 

“ The objection is purely technical, and technical objections are no longer 
regarded as serious unless they are so thoroughly supported by authority that 
they can not well be disregarded, even under the latitude of the statute re¬ 
lating to the subject. The criminal law is fast outgrowing those technicalities 
which grew up when the punishment for crime was so severe as in many cases 
to shock the moral sense of lawyers, judges, and the public generally. When 
stealing a handkerchief, worth 1 shilling, was punished by death, and there 
were nearly 200 capital offenses, it was to the credit of humanity that techni¬ 
calities should be invoked in order to prevent the cruelty of a strict and literal 
enforcement of the law. Those times have passed, for the criminal law is no 
longer harsh or inhumane, and it is fortunate for the safety of life and prop¬ 
erty that technicalities, to a great extent, have lost their hold. We overrule the 
contention of the defendant in regard to the indictment, because it is founded 
on a technicality, with no support in authority and with but slight support in 
reason.” 

Judge Coxe. delivering the opinion of the circuit court of appeals in Press 
Publishing Co. v. Monteith (ISO Fed., 357), thus states the change that some 
courts have already made in dealing with the subject of “ reversible error.” 

“ The defendant realizing, apparently, that even upon its own presentation 
no very serious error has been committed, invokes the archaic rule that if 
error be discovered, no matter how trivial, prejudice must be presumed. The 
more rational and enlightened view is that in order to justify a reversal the 
court must be able to conclude that the error is so substantial as to affect 
injuriously the appellant’s rights. 

“ Prejudice must be perceived, not presumed or imagined. 

“ The writer, speaking only for himself, is in hearty accord with the modern 
tendency. 

“ The object of all litigation should be to arrive at a just result by the most 
direct, speedy, and inexpensive proceedings. If such a result can be reached 
by absolutely inerrant methods, so much the better, but while the administra¬ 
tion of justice is in the hands of merely finite beings, such perfection can hardly 
be expected. I venture to think that no long-continued, hotly contested trial 
can be conducted to a conclusion without mistakes being committed. Few 
minds are so constituted that they can grasp at the outset all the ramifications 
of a complicated controversy and, before the judge can get the perspective of 
the trial, some mistakes may occur, but these should be disregarded if it can 
be seen that the case was correctly decided and that, even if they had not 
been made, the same result would have been reached. Justice can be attained 
without infallibility. 

“ One of the English rules provides: 

“ ‘A new trial shall not be granted on the ground of the misdirection of the 
jury or of the improper admission or rejection of evidence, unless in the opinion 
of the court to which the application is made, some substantial wrong or mis¬ 
carriage of justice has been thereby occasioned on the trial.’ 

“ Were such a rule in force here, even assuming that defendant's conten¬ 
tions are correct, the court would be unable to say that substantial wrong has 
been done the defendant. In several instances the alleged error was subse¬ 
quently corrected and the excluded evidence supplied. 

“ The granting of a new trial is often a denial of justice, witnesses die or 
remove beyond the jurisdiction of the court, and the resources of the litigants 
become exhausted. 

“Believing as we do that the libel here was without justification or excuse 
and that the verdict was not excessive, we should hesitate long before requiring 
the plaintiff to begin anew the weary pilgrimage through the courts.” 


REFORMS IN LEGAL PROCEDURE. 


27 


Legislation which embodied substantially the rule of decision recommended 
by this association has been adopted by the Legislatures of Kansas, Illinois, 
and Wisconsin, and has been under consideration in the Legislatures of Ohio 
and New York. We hope that during the present year it will appear that these 
changes have become part of the legislation of the latter State. It has been 
recommended by the State bar association and by the bar association of the city 
of New York, which is believed to be the oldest, and is certainly one of the 
most conservative, bar associations in America. 1 

4. While the association had under consideration the bill to diminish the 
expenses on proceedings of appeal and writs of error, the bar association of 
the State of Washington had prepared a different bill intended and adopted to 
accomplish the same purpose as our own. In justice to ourselves we feel bound 
to say that we think that the form recommended by this committee and adopted 
by the association was more in harmony with existing legislation than the 
bill drawn in Washington. It is, however, unnecessary to call the attention 
of the association more particularly to the difference, in view of the fact that 
the bill, as drawn by the association in Washington, received the approval of 
Congress and was signed by the President. It excited at first much unfavorable 
comment on the part of clerks of the circuit courts of appeals, and it was 
thought at first that the bill as drawn might make it impossible to meet those 
expenses of the court which were provided for by the fees of the clerk. We are 
informed that on more careful consideration this objection seems not to be 
well taken. Your committee is distinctly of opinion that this country ought 
not to expect that the expenses of the administration of justice should be paid 
out of the fees exacted from suitors. The country can well afford to maintain 
its courts and provide from the Public Treasury for all suitable expenses of 
the administration of the law. 

5. The third bill recommended by the association authorized the appointment 
of stenographers in the courts of the United States and fixed their duties and 
compensation. 

There is a large and influential stenographers’ union. This union had pre¬ 
pared a bill which undertook of itself to fix all compensation without leaving 
its determination to the judges in the different circuits. Neither of the pro¬ 
posed schemes received the approval of Congress. 

6. The next subject which was referred to us was that of limiting the right 
of appeal from the courts of the District of Columbia to the Supreme Court 
of the United States. On this subject we have had full consultation with 
members of the bar of the District of Columbia. We have come to the conclu¬ 
sion that the right of appeal as it now exists, as amended by section 250 of the 
Judicial Code, is not productive of so much inconvenience or delay to other 
suitors from the States of the Union whose cases come before the Supreme 
Court as has been supposed, and your committee does not at this time recom¬ 
mend any change in the section of that code relating to such appeals. 

7. We have prepared the following addition to the forty-fourth rule of the 
Supreme Court in admiralty, which we recommend for approval by this as¬ 


sociation: . . 

“ That in all cases of admiralty and maritime jurisdiction either party may 
introduce oral testimony and have examination of witnesses in open court.” 

The reasons for this amendment are so fully stated in our previous report 
that we think it unnecessary to repeat them here. If approved, we will submit 
it to the Supreme Court under the authority heretofore conferred upon us. 

S The same evils that have been felt to exist in admiralty cases in some of 
the circuits have also been felt in equity cases, caused by the fact that under 
the existing equity rules testimony in all cases is taken out of court. The 
complaints on this subject have been so numerous that the Supreme Court 
itself has appointed a committee, consisting of Chief Justice White, Mr. Justice 
Lurton and Mr. Justice Van Devanter, “with directions to consider and re- 
nort such changes as the committee may conclude would, if adopted, tend to 
the simplification of pleading and practice and the correction of any unnecessary 
delav or unreasonable cost resulting from practice under the rules as they now 
pvisf ” Mr. William J. Hughes has been appointed secretary of this committee, 
and he has requested your committee to aid the court in the performance of t e 

ta ?our h coVmittee’ls d ofOpinion that the same reasons which led the associa¬ 
tion to recommend the adoption of the admiralty amendment are equally ap- 


Okla ’(103 Pac., 532) ; State v. Bird, Mont. (Ill Pac., 407). 





28 


REFORMS IN LEGAL PROCEDURE. 


plicable to equity cases. It is a well-known fact that in England and many 
States of the Union testimony in equity cases on the main issues is taken in open 
court. This does not interfere with the practice of referring all matters of 
account to a master in chancery, but it leaves to the judge himself the deter¬ 
mination of the fundamental questions in the case. 

Among the objections that have been taken to this practice in equity cases 
is that the judge will say, “ I do not care to hear the testimony, because I must 
read it.” It is not for this committee to declare that no judge will ever make 
this statement, but we can affirm as a result of our own experience that judges 
in the State courts do not, and Federal judges, when they are hearing cases 
in admiralty, do not make such an unreasonable observation. We find the 
actual practice usually to be that when the judge hears the testimony he does 
not read it in extenso afterwards, but refers to it as his attention is drawn 
by the briefs of counsel or by his own investigation. It is possible that a 
judge who had not been in the habit of hearing oral testimony in cases of this 
sort might at first think that he would be obliged to read the testimony in 
extenso. But in point of fact one great object of the change is to relieve him 
from his burden, to give him the testimony in all its freshness and enable him 
to ask of the witnesses such questions as may tend to elucidate the case upon 
the merits. Experience shows that frequently these questions by the trial judge 
are illuminating and assist in a most important manner in the ascertainment of 
the facts. 

We may be permitted to refer to the customary practice of one of the great 
judges of the United States Supreme Court, Mr. Justice Blatchford. He was 
the first' district judge who was promoted to be a justice of the Supreme Court. 
His custom was to hear the oral testimony in admiralty cases with the great¬ 
est attention, and practically to make up his mind on the facts after the argu¬ 
ment of counsel, just as a juryman is required to do when a verdict is asked 
of him upon the submission of the case. The questions of law arising upon 
these facts he took for more deliberate consideration. All lawyers who had 
the privilege of practicing before him know how admirably this method of 
dealing with litigated questions conduced to the ends of justice, and how sat¬ 
isfactory it was to the bar. 

In New Jersey, which is one of the States where a separate court of chah- 
cery still exists, the practice of hearing the testimony viva voce in open 
court has proved satisfactory both to the bench and to the bar. We are dis¬ 
tinctly of opinion that a change in this respect would be beneficial in the Fed¬ 
eral courts. There is a reason for its adoption there that does not exist in 
those jurisdictions where there is a separate court of chancery. A Federal 
judge sits at law, in equity, and in admiralty. He has experience in hearing 
oral testimony in the trial of cases at law. In those circuits where the ad¬ 
miralty evidence 4s taken viva voce he also has that experience. The practice 
has been so successful in these branches of the Federal jurisdiction that your 
committee think that nothing but the conservatism, to which reference has 
been made, will prevent the adoption of the reformed practice in all equity 
cases. It may, perhaps, require the appointment of additional judges. If ex¬ 
perience should prove this to be the case, we have the satisfaction of knowing 
that the country is well able to defray the expense which this would entail. 
Indeed, the entire annual cost of the judicial administration of the United 
States is less than that of one of the great battleships which we find it so easy 
to construct. 

The objection is also taken that it would be difficult and expensive to pro¬ 
cure the attendance of experts before the judge. We are of opinion that ex¬ 
perience would show in equity, as it does now in admiralty cases, that the 
attendance of witnesses would be arranged for mutual convenience, that some 
depositions woud be taken out of court, but that the most important witnesses 
would be examined in open court and that the judge would derive from their 
oral examination a much clearer understanding of the real judgment of the 
expert. We know that expert testimony sometimes obscures when it should 
elucidate. The judge would shorten the examination and arrive at the truth 
more certainly than he now can do. 

Another committee of this association has had this subject under consid¬ 
eration. One of its members, Mr. Frederick P. Fish, has formulated the 
method, stated in schedule B, annexed to this report. Some members of this 
committee approve the proposition, but we have not been able to consider it 
in full committee. We submit it for the consideration of the association. 

In this connection we call attention to the resolution of Mr. Florance. It 
was said in the debate at Chattanooga by one of the members, “ Under the 


REFORMS IN LEGAL PROCEDURE. 


29 


Constitution of the United States the equity practice exists.” It seems to 
your committee that this is a misapprehension. 

What the Constitution does say is this (art. 3, sec. 2, subdivision 1) : 

“ The judicial power shall extend to all cases of law and equity arising under 
this Constitution, the laws of the United States, and treaties made, or which 
shall be made under their authority.” 

This section of the Constitution, in our opinion, recognizes the fact that 
there is an intrinsic difference between the substantive rules and the remedies 
which prevail at law and those which prevail in equity. It has never, so far 
as we are aware, been proposed to abolish or destroy this fact. It certainly 
has not been destroyed in any of the code States. But the Constitution says 
nothing about the procedure of the courts. It says nothing about preserving 
the jurisdiction of the court of chancery as a separate jurisdiction. In fact, 
the original judiciary act of 1790 abolished this distinction entirely. There 
has never been since the foundation of the Government a separate Federal 
court of chancery. Every Federal judge, under the existing system, is a chan¬ 
cellor, and also in propria personna a judge at nisi prius, a judge of the ad¬ 
miralty court, and of the bankruptcy court. All that is necessary for the 
pleader in order to express the distinction is to put at the head of his plead¬ 
ing the words “ at law ” or “ in equity ” or “ in admiralty.” 

There is no magic in these particular symbols. No one of them is a shib¬ 
boleth or a fetish. The court is a unit. There can be on possible reason why 
the judge who to-day sits in the jury term, to-morrow holds the equity term, 
and on the third day holds the admiralty term, should not have full power 
in either division to administer justice upon the merits. If the pleader by 
mistake has put the words “at law” in his pleading when he should have put 
the words “ in equity ” or “ in admiralty,” it should be the duty of the judge 
to make the amendment on the spot. It really seems absurd to say that such 
a mistake must injuriously affect the substantial rights of the adverse party. 
If the law is a mere game in which the man who is cleverest in the rules of the 
game will win, then by all means let us retain these tricks of the trade and add 
to then all those that once existed, but which have inconsiderately been abol¬ 
ished. But if it be, as we believe, the function of a court to do justice be¬ 
tween the parties, all requirements which interfere with the administration of 
justice should be repealed. 

The fears expressed that to break down the procedural distinctions in law 
and equity cases would impair the constitutional grant of judicial power in 
“ cases of law and equity ” is a revival of fears entertained in New York and 
other States at the time of the adoption of the codes. In Leroy v. Marshall 
(8 How., par. 373), Justice Barculo said: 

“ I am not prepared to deny that the authors of the code may have supposed 
that law and equity could be administered in precisely the same forms, nor 
that some sections of the code were designed for that purpose. But every 
judge knows, and every lawyer should know, that in practice the thing is 
impossible. 

“ Legal and equitable proceedings are essentially different from each other 
in their origin, nature, and object. * * * Indeed, it would be a matter of 

astonishment—if we were permitted to wonder at anything in this line—that 
any man of ‘ common understanding ’ should have suffered the idea to enter his 
head that legal and equitable proceedings could be molded in the same form 
and be measured by the same rules. Every person who has studied and under¬ 
stands the law as a science knows that there is substance in the distinctions 
between actions, and that those requirements which superficial observers call 
‘ unmeaning forms and prolix statements,’ were really wise and indispensable 
safeguards and protections in administering the most important as well as the 
most intricate of human sciences.” 

In New York & New Haven R. R. Co. v. Schuyler (17 N. Y., 592), Judge 
Comstock remarked that the code “ with characteristic perspicacity had in fact 
abrogated equity jurisdiction in many important cases.” Notwithstanding 
these alarming judicial statements, legal and equitable remedies continue to be 
administered under the codes; legal principles and equitable principles con¬ 
tinue to be observed. Many think that they are more conveniently adminis¬ 
tered and observed under an approximately uniform procedure than they were 
in those days when a mistake in the choice of a proceeding threw the plaintiff 
out of court, even if it did not finally defeat his right. 

It was for many years the practice in the Federal courts to dismiss a suit 
which was held to have been brought on the wrong side of the court and compel 


30 


REFORMS IN LEGAL PROCEDURE. 


the plaintiff to resort to another action. But in the recent case of Schurmeyer 
v. Connecticut Mutual (171 Fed., 1), a more liberal practice was adopted. 
Plaintiff sought relief in an action at law which could only be granted in a 
suit in equity. This was finally decided by the circuit court of appeals and the 
case remanded to the circuit court. Judge Amidon, in the circuit court; made 
an order directing the plaintiff to transform his complaint at law into a bill in 
equity, and directed that the cause be transferred to the equity docket, there 
to be proceeded with the same as if it had been originally brought as a suit in 
equity. The circuit court of appeals approved this practice (ibid., p. 7). The 
court followed a very able opinion by Judge Shiras in United States Bank v. 
Lyon County (48 Fed., 632). 

Your committee has prepared a bill (Schedule C), which undertakes to pro¬ 
vide a remedy for the evil which has been mentioned. In view of the decision 
just referred to, it may be that the object of the first section of this bill could 
be accomplished by a rule of the Supreme Court in equity, which would regulate 
the practice in all the circuits and conform it to that adopted in the cases 
just cited. 

9. So far as the subject of a general practice act is concerned, your committee 
has been entirely unable, within the time which has elapsed since the last 
meeting of the association, to formulate an act upon this subject. A subcom¬ 
mittee, however, is drafting a preliminary scheme to which your committee, if 
continued, will be glad to give further and more deliberate consideration. 

10. There is one more subject within the scope of the general resolution 
creating this committee which we have considered, and which we bring to the 
attention of the association. In the first judiciary act jurisdiction was given 
to the Supreme Court to review by writ of error, a judgment of the highest 
court of the State in which a party had asserted a claim under the Constitution 
and laws of the United States, and the decision of the State court had been 
adverse to this claim. In Cohen v. Virginia (6 Wheat., 414) the Supreme 
Court held that this grant of power was authorized by that clause of the Con¬ 
stitution to which reference has been had, that such a writ of error was a case 
arising under the Constitution and laws of the United States, and that it was 
competent for the Supreme Court to reverse the judgment of the State court. 
This jurisdiction has been exercised most beneficially and some of the most 
important decisions of the Supreme Court have been made under the power 
thus conferred. 1 It is not too much to say that without the powers which the 
Supreme Court in these cases (in every one of which the decision of the lower 
court was reversed) maintained for the Federal Government we should not 
have been a Nation and would have gone to pieces. Indeed, a government 
without the powers thus asserted would not have been worth preserving. The 
historic reason for the limitation in the original judiciary act, to wit, that the 
writ of error should only be permitted where the decision in the State court 
had been adverse to the claimant, was this: It was thought that the main 
ground for giving the jurisdiction was that there might be a jealousy of the 
Federal Government on the part of the State courts. In fact this jealousy did 
exist in the earlier years of the country’s history. Therefore where the de¬ 
cision of the State courts was in favor of the right asserted under the Federal 
Constitution it was thought there would be no just ground for complaint. 

In the present generation we are confronted with a new situation. There 
are many instances in which the language of portions of the Federal Con¬ 
stitution has been adopted by the constitutions of the several States. In liti¬ 
gated cases rights have been asserted under both constitutions. The rights thus 
asserted are of exemption from the provisions of laws which in the judgment 
of the great majority of the people of the States are essential to the public 
welfare. Take, for example, the subject of compensation for injuries to work¬ 
men. The evils which exist under the present system of making compensation 
for injuries caused by negligence are so great that they have excited universal 
attention. One of the most serious of them has been condemned by this asso¬ 
ciation in its code of ethics; that is to say, the business which has grown up 
in large centers, commonly known as ambulance chasing. There are prac¬ 
titioners who keep their scouts on the lookout for accidents, seek employment 
at once from the injured party, engage to pay the expenses of the litigation 
upon contingent fees, often amounting to 50 per cent of the recovery. All this 
business we have condemned, and justly condemned. 2 Yet it is almost a neces¬ 
sary consequence of the failure of the State to make any provision for compen- 


1 Dartmouth Coliege v. Woodward (4 Wheat., 518) ; Gibbons v. Ogden (9 Wheat., 1) ; 
McCullough v. Maryland (4 Wheat., 316) ; The Passenger Tax cases (7 How., 288). 

2 Canons, 27, 28; 33 Reports American Bar Association, 582, 583. 




REFORMS IN LEGAL PROCEDURE. 


31 


sation to be ascertained in a more reasonable manner, and to be determined in 
advance. At its last term tlie Court of Appeals of the State of New York held 
that a workmen’s compensation act, which had been adopted by the legislature 
of that State after very careful consideration and which the court admitted 
to be beneficial to the public, was in violation of that clause of the fourteenth 
amendment which has been embodied in the constitution of the State of New 
York, which provides: “ Nor shall any State deprive any person of life, liberty, 
or property without due process of law.” 1 There is a similar clause in the 
constitutions of most of the States. Similar acts on the subject of compensa¬ 
tion for injuries have been passed in many of the States. One very like the 
New York statute has been passed in the State of Washington, and the question 
of its constitutionality is under advisement by the supreme court of that State. 
It seems to many counsel, learned in the law, quite probable that the decision 
in Washington will be the reverse of that in New York. We shall then be in 
the position of having the Constitution of the United States mean one thing 
in New York and another in Washington. 

The reason which originally prevailed for the adoption of this limitation 
upon the right of review has ceased. The reason having ceased, the law 
should cease. No such limitation is contained in section 250 of the Judicial 
Code relating to the review of decrees of the District of Columbia courts. 
We therefore recommend that this limitation be repealed, and report a bill, 
Schedule D, for that purpose. 

We also submit a report from the subcommittee dealing with the subject of 
law and equity in the Federal courts. This is marked “ Schedule E.” 

One member of our committee, Mr. Allen, dissents from that portion of the 
report relating to Schedule D. We submit a copy of his dissenting memo¬ 
randum, marked “ Schedule F.” 

We recommend for adoption the following resolutions: 

“ Resolved, That the special committee to suggest remedies and formulate 
proposed laws be continued with the powers heretofore conferred upon it. 

“ Resolved, That it be discharged from further consideration of the subject 
of District of Columbia appeals. 

“Resolved, That the American Bar Association approves the provisions of 
the bill to amend chapter 11 of the Judicial Code of the United States, 
reported by said special committee. 

“ Resolved, That the American Bar Association approves the provisions of 
the bill to extend the right of review in cases arising under the Constitution 
of the United States, reported by said committee, being an amendment to 
section 237 of the Judicial Code. 

“ Resolved, That the American Bar Association approves the amendment to 
admiralty rule No. 44, reported by said committee. 

“ Resolved, That the said committee be instructed to bring the portion of 
the report relating to equity practice to the attention of the Justices of the 
Supreme Court of the United States. 

“ Resolved, That the said committee be instructed to take such steps as it 
shall deem expedient to procure the introduction and passage of said bills at 
the next session of the Congress of the United States, and to recommend the 
same to the attention of the committees of Congress to which the said bills 
may be referred.” 

All of which is respectfully submitted. 

Everett P. Wheeler, Chairman, 
Roscoe Pound, 

Charles F. Amidon, 

Joseph Henry Beale, 

Frank Irvine, 

Samuel C. Eastman, 

Henry D. Estabrook, 

Charles E. Littlefield, 

Eugene A. Bancroft, 

Stephen H. Allen, 

Arthur Steuart, 

John D. Lawson, 

Samuel Scoville, Jr., 

William L. January, Secretary. 


Boston, August 29, 1911. 


1 Ives v. South Buffalo R. Co., decided May, 1911. 








32 


REFORMS IN LEGAL PROCEDURE. 


Schedule A. 

[II. R. 311G5.] 

Be it enacted by the Senate and the House of Representatives of the United 
States of America in Congress assembled, No judgment shall be set aside, or 
reversed, or new trial granted by any court of tbe United States in any case, 
civil or criminal, on tbe ground of misdirection of the jury or the improper ad¬ 
mission or rejection of evidence, or for error as to any matter of pleading or 
procedure, unless, in tbe opinion of tbe court to which application is made, after 
an examination of tbe entire cause, it shall appear that tbe error complained of 
has injuriously affected tbe substantial rights of tbe parties. Tbe trial judge 
may in any case submit to the jury tbe issues of fact arising upon tbe pleadings, 
reserving any question of law arising in tbe case for subsequent argument and 
decision, and be and any court to which tbe case shall thereafter be taken on 
writ of error shall have the power to direct judgment to be entered either upon 
tbe verdict or upon tbe point reserved, if conclusive, as its judgment upon 
such point reserved may require. 

Passed tbe House unanimously, February 6, 1911. 

Schedule B. 

I am satisfied that there can be no real reform in equity procedure and prac¬ 
tice in tbe United States courts until there is a judge in control of each case 
from tbe time tbe pleadings are completed, with a definite feeling of responsi¬ 
bility on tbe part of tbe judge that be is to control tbe procedure. Specifically, 
I believe that the best possible plan would be this: 

As soon as tbe pleadings are completed, tbe case should be assigned to a judge 
who will practically control it from that moment. He should immediately bring 
counsel together and find out what tbe case is about. He should learn spe¬ 
cifically what is tbe nature of tbe controversy and definitely what are tbe 
defenses. He should then determine which of those defenses could properly and 
fairly be tried in open court. If be found, on this preliminary bearing, that 
there was testimony to be taken out of tbe circuit or that certain testimony 
could not be produced in open court, be should then and there appoint an ex¬ 
aminer to take this particular testimony within a fixed time, which, of course, 
be could extend if necessary. If any questions arose in tbe course of this testi¬ 
mony, be should not refuse to pass upon them, but should recognize an obliga¬ 
tion to do so. 

At this preliminary hearing, having arranged for taking tbe testimony that 
must be taken before an examiner, tbe judge should set tbe case down for bear¬ 
ing at a fixed date, at which time tbe rest of the testimony would be taken 
orally before him. At tbe trial there would be tbe depositions taken before the 
examiner and a stenographic report of tbe testimony taken from day to day in 
open court. In all tbe great centers testimony taken one day could be in print 
tbe next morning. 

If at any time during tbe trial there was a surprise or any ground for so 
doing, the court would adjourn tbe bearing for a time, that the parties might 
have the opportunity to meet tbe new conditions. Tbe trial in open court would 
be resumed at tbe expiration of tbe period of adjournment. 

Tbe rule of Blease v. Garlington should be amended so that tbe trial judge 
could deal with testimony in equity substantially as be deals with testimony at 
law. Tbe rights of a party offering testimony which tbe trial judge rejected 
could be protected by a statement from counsel offering tbe testimony as to 
what it was and what be expected to prove. Tbe appellate court could then 
determine whether tbe testimony bad been properly or improperly excluded, and 
if its view was that tbe testimony bad been improperly excluded, tbe case could 
be sent back for tbe single purpose of taking this testimony. 

It would be an enormous gain in patent cases if tbe experts should be forced 
to testify in tbe presence of tbe court. I have no doubt that tbe length of 
expert depositions would be reduced 75 per cent and tbe court would be sure to 
understand tbe experts. Tbe court would check tbe expert whenever be got 
away from the points of tbe case and would check tbe cross-examination when 
tbe same was improper. 


REFORMS IN LEGAL PROCEDURE. 


33 


If cases were prepared in this way a very large number of them could be 
decided by the trial judge before he left the bench at the close of the hearing. 
His opinion would be taken down stenographically and subsequently revised 
by him if necessary. He would be spared the necessity of reading an enormous 
record, with the subject matter of which he was not familiar, for the sake of 
getting at the comparatively few points upon which every case ultimately is 
determined. 

Frederick P. Fish. 


Schedule C. 

AN ACT To amend chapter eleven of the Judicial Code. 

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, That chapter eleven of the Judicial 
Code entitled “ Provisions common to more than one court ” shall be amended 
by adding at the end thereof new sections to be known as sections two hundred 
and seventy-four A and two hundred and seventy-four B, to read as follows: 

“ Sec. 274 A. In case any of said courts shall find that a suit at law should 
have been brought in equity or a suit in equity should have been brought at 
law, the court shall order any amendments to the pleadings which may be neces¬ 
sary to conform them to the proper practice. Any party to the suit shall have 
the right at any stage of the cause to amend his pleadings so as to obviate the 
objection that his suit was not brought on the right side of the court. The 
cause shall proceed and be determined upon such amended pleadings. All tes¬ 
timony taken before such amendment shall stand as testimony in the cause with 
like effect as if the pleadings had been originally in the amended form. 

“ Sec. 274 B. In all actions at law equitable defenses may be interposed by 
answer, plea, or replication without the necessity of filing a bill on the equity 
side of the court. The defendant shall have the same rights in such case as if 
he had filed a bill embodying the defense or seeking the relief prayed for in 
such answer or plea. Equitable relief respecting the subject matter of the 
suit may thus be obtained by answer or plea. In case affirmative relief is 
prayed in such answer or plea the plaintiff shall file a replication. Review 
of the judgment or decree entered in such case shall be regulated by rule of 
court. Whether such review be sought by writ of error or by appeal, the 
appellate court shall have full power to render such judgment upon the record 
as law and justice shall reqire.” 


Schedule D. 

AN ACT To amend section two hundred and thirty-seven of the Judicial Code. 

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled , That section two hundred and thirty- 
seven of the Judicial Code be, and the same is hereby, amended so as to read 

as follows: , . _ 

“ s E c. 237. A final judgment or decree in any suit in the highest court of a 
State in which a decision in the suit could be had, where is drawn in question 
the validity of a treaty or statute of or an authority exercised under the 
United States [and the decision is against their validity ]; or where is drawn 
in question the validity of a statute of or an authority exercised under any 
State on the ground of their being repugnant to the Constitution, treaties, or 
laws of the United States [and the decision is in favor of their validity ]; or 
where any title, right, privilege, or immunity is claimed under the Constitu¬ 
tion or any treaty or statute of or commission held or authority exercised 
under the United States [and' the decision is against the title, right, privilege * 
or immunity especially set up or claimed by either party under such Consti¬ 
tution, treaty, statute, commission, or authority ], may be reexamined and re¬ 
versed or affirmed in the Supreme Court upon a writ of error. The writ shall 
have the same effect as if the judgment or decree complained of had been ren¬ 
dered or passed in a court of the United States. The Supreme Court may re¬ 
verse modify or affirm the judgment or decree of such State court, and may, at 
their’discretion, award execution or remand the same to the court from which 
it was removed by the writ.” 

The bracketed words in italics are to be omitted. 


32966—12-3 



34 


REFORMS IN LEGAL PROCEDURE. 


Schedule E. 

REPORT OF SUBCOMMITTEE UPON THE RESOLUTION OF MR. FLORANCE AND THAT OF 

MR. SHELTON. 

I. 


LAW AND EQUITY IN THE FEDERAL COURTS. 

Tlie first question in any proposed reform in Federal procedure with respect 
to the absolute separation of legal and equitable proceedings must be one of 
constitutionality. There are many dicta in the books to the effect that such a 
separation is required by provisions of the Constitution. It may be well to set 
forth these dicta. 

“ It is undoubtedly true, as contended for in the argument of the complain¬ 
ant in regard to equitable rights, that the power of the courts of chancery of 
the United States is, under the Constitution, to be regulated by the law of the 
English chancery; that is to say, the distinction between law and equity as 
recognized in the jurisprudence of England is to be observed in the courts of 
the United States in administering the remedy for an existing right. The rule 
applied to the remedy and not the right. * * * It is the form of remedy 

for which the Constitution provides.” (Taney, C. J., in Meade v. Beale, Taney, 
339, 361; 1850.) 

This dictum of Chief Justice Taney (at circuit) has been cited as meaning 
that the Constitution provides for a proceeding in chancery for all rights to 
which such proceedings were appropriate under the old English practice. But, 
proprly apprehended, such is not its meaning. The learned Chief Justice saw, 
what many have pointed out since, that the distinction was one of remedy; that 
for certain situations our legal system provides a remedy by a command ad¬ 
dressed to and enforced against the person, and that the Constitution expressly 
provides that the Federal courts shall administer this type of remedy in ap¬ 
propriate cases. It does not provide, nor does the dictum above quoted say 
that it provides any procedure by which the type of remedy in question is to 
be sought or in which it is to be awarded. 

A number of subsequent dicta, however, are put more sweepingly: 

“The Constitution of the United States, in creating and defining the judicial 
power of the General Government, establishes this distinction between law and 
equity; and a party who claims a legal title must proceed at law.” (Taney, 
C. J., in Bennett v. Butterworth, 11 How., 669, 674; 1850.) 

Here, again, what is meant is that one whose claim is legal must have a legal 
remedy; not that this remedy must be sought in any particular form of pro¬ 
ceeding. The former was all that the court had to decide. 

“In the last-mentioned case (Bennett v. Butterworth. supra) the Chief Jus¬ 
tice, in delivering the opinion of the court, says: ‘ The Constitution of the 
United States has recognized the distinction between law and equity, and it 
must be observed in the Federal courts.’ In Louisiana, where the civil law 
prevails, we have necessarily to adopt the forms of action inseparable from 
the system. But in those States where the courts of the United States admin¬ 
ister the common law, they can not adopt these novel inventions, which pro¬ 
pose to amalgamate law and equity by enacting a hybrid system of pleadings 
unsuited to the administration of either.” [Italics in the original.] (Grier, J., 
in McFaul v. Ramsey, 20 How., 523, 525; 1857.) 

This protest against the attempt of the Federal district court for Iowa to 
apply the Iowa code of civil procedure was well taken. Beyond that, the pas¬ 
sage is only one of many oracular pronouncements to be found in the books, 
when the codes of procedure were new, which have been refuted by the event. 

“ The only way in which the defendant could have effectively raised the 
question of his liability as a shareholder, arising from frauds committed by the 
bank or its officers before its suspension, whereby he was induced to become a 
shareholder, was by a suit in equity against the bank and the receiver. Instead 
©f pursuing that course, he sought by interposing an equitable defense to defeat 
this action at law brought by the receiver under the statute. That can not be 
done, because under the Constitution of the United States the distinction be¬ 
tween law and equity is recognized, so that in actions at law in a circuit court 
of the United States equitable defenses are not permitted.” (Harlan, J., in 
Lantry v. Wallace, 182 U. S., 536, 550; 1900.) 

“There is a fundamental distinction growing out of the Federal Constitu¬ 
tion and legislation between legal and equitable procedure. The seventh amend- 


REFORMS IN LEGAL PROCEDURE. 


35 


ment to the Constitution provides that in ‘ suits at common law, where the value 
in controversy shall exceed $20, the right of trial by jury shall be preserved.’ 
And section 16 of the judiciary act of September 24, 1789, reproduced in sec¬ 
tion 723 of the Revised Statutes, enacts that ‘ suits in equity shall not be sus¬ 
tained in either of the courts of the United States in any case where a plain, 
adequate, and complete remedy may be had at law.’ These constitutional and 
statutory provisions control the procedure of the Federal courts.” (Bradford, 
J., in Jones v. Mutual Fidelity Co., 123 Fed., 507, 517; 1903.) 

Here the matter is put upon its true ground, namely, the seventh amendment 
and Federal legislation, and it may well be that the preceding extract, in 
reality proceeds upon the same idea. 

We have, theu, three matters to consider when legal and equitable procedure 
in a Federal court are before us: (1) The constitutional recognition of law and 
equity in the provision conferring jurisdiction upon the courts of the United 
States; (2) the seventh amendment; (3) Federal legislation providing for dis¬ 
tinct procedure at law and in equity. The first of these is the basis of some 
or even of all but the last of the judicial pronouncements above quoted. Yet 
if we go back to the fountain head of these statements in the original dictum 
of Taney, C. J., we see at once that he had in mind the remedy, not the form 
of procedure, and hence that his remarks afford no ground for assuming that 
the words “ at law and in equity ” require a distinct procedure. Rather, those 
words were meant to give to Federal courts each of the two great classes of 
remedies of the Anglo-American legal system. Accordingly many dicta have 
recognized that a substantial, not a formal or procedural distinction is the one 
recognized. For instance, that is evidently what Curtis, J., had in mind when 
he spoke-of “the equity law recognized by the Constitution and by acts of 
Congress.” (Neves v. Scott, 13 How., 268, 272; 1851.) 

So, also, in the following: 

“ The Constitution of the United States and the acts of Congress recognize 
and establish the distinction between law and equity. The remedies in the 
courts of the United States are at common law or in equity, not according to 
the practice of State courts, but according to the principles of common law 
and equity as distinguished and defined in that country from which we derive 
our knowledge of these principles.” (Davis, J., in Thompson v. Railroad Com¬ 
panies, 6 Wall., 134, 137; 1867.) 

There remains one remark of an eminent judge sitting in a circuit court of 
appeals: 

“ But in the courts of the United States the distinction between actions at 
law and suits in equity and between legal and equitable defenses is carefully 
preserved, because it is clearly recognized in the Constitution and laws of the 
United States.” (Van Devanter, J., in Anglo-American Land Co. v. Lombard 
(C. C. A.), 132 Fed., 721, 731; 1904.) 

It is submitted that this means that the distinction between the remedies 
and the substance of the defenses is recognized by the Constitution and the 
distinction between the modes of procedure is established by the statutes. 

In the requirement of the seventh amendment, that the right of trial by jury 
shall be preserved, we find a more serious matter. That this is the true basis 
of separate procedure at law and in equity has been recognized by many judges: 

“ The Constitution in its seventh amendment declares that ‘ in suits at com¬ 
mon law, where the value in controversy shall exceed $20, the right of trial by 
jury shall be preserved.’ In the Federal courts this right can not be dispensed 
with except by the assent of the parties entitled to it, nor can it be impaired by 
any blending with a claim properly cognizable at law of a demand for equitable 
relief in aid of the legal action or during its pendency. Such aid in the Federal 
courts must be sought in separate proceedings, to the end that the right to a 
trial by jury in the legal action may be preserved intact.” (Field, .T., in Scott v. 
Neely, 140 U. S., 106, 109; 1890.) 

This evidently does not mean that the learned justice thought such a blending 
might not be provided for, if it did not impair the right to jury trial of legal 
issues. No such blending was permissible under the existing practice, and the 
reason is pointed out, namely to preserve the right to jury trial. If, therefore, 
that right can be preserved, such a blending of legal and equitable issues in one 
cause might be established by proper authority. That this is so, the Supreme 
Court of the United States has made clear abundantly in passing upon legisla¬ 
tion in territories where statutes had done this very thing: 

“ The question is whether this act of the territorial legislature in substance 
impairs the right of trial by jury. The seventh amendment, indeed, does not 


36 


REFORMS IN LEGAL PROCEDURE. 


attempt to regulate matters of pleading or practice, or to determine in what way 
issues shall be framed by which questions of fact are to be submitted to a jury. 
Its aim is not to preserve mere matters of form and procedure, but substance 
of right This requires that questions of fact in common-law actions shall be 
settled by a jury, and that the court shall not assume directly or indirectly to 
take from the jury or to itself this prerogative. So long as this substance of 
right is preserved, the procedure by which this result shall be reached is wholly 
within the discretion of the legislature, and the courts may not set aside any 
legislative provision in this respect because the form of action—the mere 
manner in which questions are submitted—is different from that which obtained 
at the common law.” (Brewer, J., in Walker v. Railroad, 165 U. S., 593, 
596; 1896.) 

“As in Oklahoma [then a Territory] the distinction between actions at law 
and suits in equity is abolished—each action being called a civil action, what¬ 
ever the nature of the relief asked * * *—we perceive no reason why the 

case may not proceed in the trial court under the pleadings as they have been 
framed, with the right of the defendant to a trial by jury of all issues which, 
according to the recognized distinctions between actions at common law and 
suits in equity, are determinable in that mode.” (Harlan, J., in Black v. 
Jackson, 177 U. S., 349, 364; 1899.) 

In that case the suit was, in form, one for a mandatory injunction. The court 
held that the seventh amendment did not require that the cause be brought 
anew as an action of ejectment, but that a jury trial of the legal issue as to 
possession would suffice. 

This construction of the effect of the seventh amendment upon procedure at 
law and in equity, which must commend itself to everyone’s good sense, is borne 
out, moreover, by what the court, speaking through Mathews, J., said in Ex 
parte Boyd (105 U. S., 647, 656; 1881) ; 

“And the remaining question, therefore, becomes, not so much whether Con¬ 
gress may, by appropriate legislation, transmute an equitable into a legal pro¬ 
cedure, as whether it can in any wise change the rules of pleading and procedure 
as to courts, either of law or equity, in force in England at the time of the 
adoption of the Constitution, or whether by the adoption of that instrument all 
progress in the modes of enforcing rights, both of law and in equity, was 
arrested and their forms forever fixed. To state the question is to answer it.” 

It would seem, therefore, that: 

(1) The Constitution gives the courts both legal and equitable jurisdiction; 
that is, the power to give both legal and equitable remedies, so that neither 
may be taken away by legislation. 

(2) The Constitution preserves a right to a jury trial of legal issues triable 
only in an action at law under the common law, which can not be taken away, 
though it may be waived by the party entitled. 

(3) If the remedies and the right so secured are not taken away or impaired 
the mere manner in which the remedy shall be sought and the issue to be tried, 
shall be presented is subject to legislative control. 

(4) Hence, if anything, legislation only requires the present complete and 
absolute separation of law and equity in Federal procedure. 

The second question may well be, How far may rules of court achieve the 
desired reforms and how far must they be achieved by legislation? As has 
been seen, the judiciary act of 1789, chapter 20, section 16, recognized the sub¬ 
stantive distinction. But section 19 of the same act recognized, or at least as¬ 
sumed, a procedural distinction. Section 21 of that act and section 36 of the 
act of May 8, 1792 (1 Stat. L., 276), do the same. Since that time the distinc¬ 
tion has been assumed in all subsequent legislation. Whether it is required 
thereby is not so clear. But the Federal courts have said that it is so em¬ 
phatically so many times that resort to legislation may be the better course. 
There is good precedent, however, for allowing amendment from law to equity 
and vice versa without express legislation, in the decision of Chief Justice Doe, 
of New Hampshire, in Metcalf v. Gilmore (59 N. H., 417, 433). In that cause 
the court held that the fact that the statute of jeofails allowed amendments 
at law and that amendments were always allowed in equity, coupled with the 
union of legal and equitable powers in one court, was enough to justify such 
amendments. Doe, C. J., said: 

“Against an amendment based on the existing unity of jurisdiction it might 
be asserted that nothing can be done in court without a precedent, and that 
there is no precedent for such an amendment. But the unity of jurisdiction 
authorizes such an amendment as could have been made if the unity had been 
coeval with the common law. In a writ of entry on a mortgage it is found that 


REFORMS IN LEGAL PROCEDURE. 


37 


the mortgage siiould be reformed. If law and equity had not been disjoined 
in England (as by the true principle of the common law they could not be) 
another suit with new process and new notice, for the reformation of the mort¬ 
gage, would be no more necessary than a new suit to amend a town clerk’s 
record or an officer’s return, a reformation of which becomes necessary and is 
made during the trial. By fair implication the legislative act uniting the dis¬ 
jointed function prescribes whatever new proceedings are requisite for giving 
due effect to the union.” 

In some ways the Federal courts are much better situated to allow this de¬ 
sirable practice without legislation than was the Supreme Court of New Hamp¬ 
shire. In the Federal courts the practice at law by statute conforms to the 
State practice, which almost everywhere allows amendment from law to equity, 
or vice versa. The practice in equity by statute is subject to regulation by 
rules of court. With full legal and equitable jurisdiction in all the Federal 
courts it would seem that, unless the long line of dicta above quoted afford an 
insuperable obstacle, the power to make equity rules might well be invoked 
and obviate the interference of Congress. Moreover, there is good Federal 
precedent for such amendment without even a Federal equity rule. (Scliur- 
meyer v. Life Ins. Co., 171 Fed., 1.) 

Thirdly, we must ask what reforms in the relation of law and equity in 
Federal procedure are desirable? It is submitted that three are desirable at 
once: (1)Power of amendment from law to equity, and vice versa; (2) power to 
allow equitable defenses and equitable replications at law; (3) power to grant 
ancillary equitable relief in pending legal proceedings without requiring an 
independent suit with new process. 

The first of these raises no questions other than those already discussed. Its 
desirability would seem beyond argument. It exists not only in the 27 code 
jurisdictions, but also in the more advanced common-law jurisdictions. As has 
been seen, in New Hampshire it exists by judicial decision as a corollary of the 
granting of legal and equitable jurisdiction to one set of courts. Noteworthy 
statutes giving the same power, where legal and equitable procedure are kept 
distinct, are: Massachusetts, Revised Laws, chapter 173, section 52; Illinois, 
Laws of 1907, page 435, section 40. In this respect practice in the Federal 
courts is far behind that in the State courts. 

The second proposed reform involves three items: (a) Allowing equitable 
defenses at law, (&) allowing equitable cross-demands in legal proceedings, 
where to make one’s defense he must have affirmative equitable relief, such as 
reformation, cancellation, or specific performance, (c) allowing equitable repli¬ 
cations at law, as, for instance, where a release under seal is set up as a 
defense and the plaintiff desires to avoid it on the ground that it was obtained 
by fraud. That this is not permitted in the Federal courts, see Hill v. North¬ 
ern Pacific R. R. Co. (C. C. A., 113 Fed., 914). All of these powers are pos^ 
sessed by the majority of our State courts, and their desirability need not be 
argued. The sole difficulty lies in the necessity of carefully preserving the 
constitutional right to'jury trial of legal issues. This has not proved a serious 
obstacle in the 27 code jurisdictions, though the legislative solutions thereof 
have not always been happy. Three classes of cases have arisen under codes 
and practice acts: (1) Pure equitable defenses, used defensively only. Here 
many jurisdictions submit the facts to a jury, as the party who interposes the 
defense at law may not well complain thereof. But, if the court itself passes 
on the facts on wdiich such a defense is predicated and directs what legal effect 
shall be given to the facts so determined, according to what a court of equity 
would have done in a separate suit for that purpose, no constitutional right is 
impaired. (Marling v. Railroad Co., 67 la., 331.) (2) Cross-demands for 

equitable relief of an affirmative nature, which, if granted, will cut off or dis¬ 
pose of plaintiff’s case, but if denied will leave his case yet to be tried on its 
purely legal issues, or some of them. Here the latter only are triable to jury 
as of constitutional right. Hence the court may try the claim for equitable 
relief, and then, if any legal issues remain to be tried, a jury trial may be had. 
(Fish v. Benson, 71 Cal., 428; Stono v. Weiler, 128 N. Y., 655.) (3) In some 

cases a legal cross-demand has been set up in a suit in equity. Here the party 
who so sets it up and asks that it be adjudicated in the equity cause has been 
held to have waived a right to jury trial. Yet the other party may not choose 
to waive such right. Then the question obviously ought to depend upon 
whether, as may sometimes be done, this legal issue can be used defensively in 
equity under the chancery practice. If so, obviously no jury trial may be had; 
if not, the right must be preserved. (Larkin v. Wilson, 28 Kan., 513; Davison 


38 


REFORMS IN LEGAL PROCEDURE. 


v. Associates of the Jersey Co., 71 N. Y., 333.) Some of the codes have tried 
to formulate these rather obvious conclusions, to which the courts have come 
wherever legislation would allow them by the use of general phrases, such as 
“ actions for the recovery of money only,” “ legal issues,” “ equitable issues,” 
and the like. Such formulas have made much difficulty, since questions have 
arisen as to how far they may have altered the preexisting rights as to mode 
of trial. On the whole, no better formula is to be found than that announced 
by Harlan, J., in Black v. Johnson (177 U. S., 349, 364), that a party must 
have as of right “ a trial by jury of all issues which, according to the recog¬ 
nized distinctions between actions at common law and suit in equity are de¬ 
terminable in that mode.” 

Still another difficulty may be suggested here, namely, the different mode of 
review in the Federal courts of actions at law and suits in equity, respectively. 
It may be asked what is to be done where an action at law involving equitable 
defenses or an equitable replication must be reviewed? Shall there be error as 
to the legal part and appeal as to the equitable part, which would produce 
great confusion? The question is not a new one. In many of the code States 
separate forms of review for law. and equity were preserved till recently, and 
hence this very situation arose. The solution adopted was to look to the nature 
of the main proceeding in the course of which equitable or legal claims had 
been interposed. It was stated thus by Maxwell, C. J.: “ The rule seems to 
be that where the action is at law to review the action itself or a final order 
in any special proceeding therein the proper practice is by petition in error; 
but where the action is in equity the decree itself or any special proceeding in 
the action * * * may be reviewed on appeal.” (Morse v. Engle, 26 Nebr., 

247.) In like manner in Massachusetts, where certain equitable defenses may 
be made at law, an action at law in which such a defense is raised is reviewed 
by exceptions like any other action at law. (Page v. Higgins, 150 Mass., 27.) 

There remains the matter of injunctions to preserve the status quo pending 
actions at law. It is a needless expense to require a separate suit with new 
process and pleadings for this purpose. But no statute is necessary here. • The 
Supreme Court has power by equity rules to prescribe the forms of procedure 
for exercise of all equitable powers of the court. Surely it may provide that 
this power of granting an injunction auxiliary to a pending legal proceeding may 
be exercised upon petition and notice in the legal controversy itself. Indeed 
it would seem arguable that it might by rule allow a plea or answer or repli¬ 
cation in an action at law to serve the purpose of a bill, and so, without legis¬ 
lation, provide for equitable defenses and equitable replications. 

. II. 

MR. SHELTON’S RESOLUTION. 

If this resolution is taken literally, no one can have any objection to it. 
Certainly none of those who advocate reform of procedure propose or have pro¬ 
posed that a court in deciding a controversy should, or should be permitted to, 
consider anything not legally before it in pleadings, by way of judicial notice, 
in the form of a presumption or in the form of legal evidence. What they 
urge is that when a cause is before the court in the form of legal evidence 
the court should be empowered to act upon it, and its decision should not 
be set aside, even if not exactly presented by pleadings, unless some injury has 
resulted from want of notice of the case or defense to be made. In other 
words, they urge that pleadings should have but two functions: (1) To furnish 
notice of the claims, defenses, or cross demands of the parties; (2) to make a 
record of what has been passed upon, so as to furnish a basis for subsequent 
pleas of res judicata. This matter was fully argued in our report a year ago. 
We need not repeat the arguments then urged. It is enough to say that if the 
pleadings give due notice they subserve every useful purpose of judicial pres¬ 
entation of a cause. 

It is suspected, however, that the purpose of the resolution is to impose upon 
the committee a doctrine, which has been much urged, to the effect that a 
court ought not to be permitted to deal with a cause in any way unless and 
until a technical statement of a cause of action, including all the legal elements 
of the case, is before it. It has been asserted somewhat dogmatically ( a) that this 
is a fundamental requirement of the judicial administration of justice, without 
which there can be no law; (&) that it has always obtained in all legal systems; 
(c) that without it constitutional government is impossible, since the courts 


REFORMS IN LEGAL PROCEDURE. 


39 


would operate arbitrarily and despotically. As to the first, it may be enough 
to say that justice is very well administered to-day in many kinds of cases 
without anything of the sort—in magistrates’ and justices’ courts on indorsed 
writs or informal bills of particulars, in the trial of claims against the estates 
of deceased persons in many jurisdictions on informal claim bills, in the Eng¬ 
lish courts and in the courts of Canada on informally indorsed writs or in¬ 
formal statements of claim, designed to afford notice. As to the second, it may 
be remarked that in all three periods of Roman procedure the plaintiff’s case 
was stated in a manner which would be open to demurrer at common law, and 
that in modern German procedure, after citation containing a mere notice, the 
issues are settled by a process of tentative pleading and amendment between 
court and counsel in which common-law demurrers would lie .to nearly every 
pleading. As to the third, in view of the wide powers of interpretation and 
ascertainment of the law which our common-law system confides to the courts, 
it seems puerile to tie the courts hand and foot with procedural details lest 
they act arbitrarily. But notice pleading affords no more scope for arbitrary 
action than a pleading which requires a case to be stated with all its legal ele¬ 
ments in common-law form. The action of the court on the case made by the 
proofs is always open to review, and that is the real concern of the law and of 
sociely; any deprivation of a fair chance to meet the case so made is also per¬ 
fectly open to review. Variance ceases to be a matter for technical sparring 
for advantage and becomes one of substantial rights, namely, Has the party 
who claims it had a fair opportunity to meet the case against him? 

It has been urged that a court can not act until a case is fully and technically 
made in a pleading before it. Why not? Courts do so act in the cases above 
enumerated and in others set forth in the report last year with no untoward 
results. The truth is the requirement of a technically correct pleading to sus¬ 
tain a good case fully proved by legal evidence after a fair hearing is purely 
historical. It arises from the common-law mode of review by writ of error at a 
time when the parchment judgment roll was the sole mode of setting forth what 
the tribunal had done. Unless a case was made by the pleadings to sustain the 
judgment rendered, the reviewing court had no means of knowing upon what 
the judgment proceeded. To-day, with better modes of review in vogue in 
almost all jurisdictions and with ample facilities for review of the actual case, 
to continue to review the pleadings and to require new trial of a good case 
because of a bad pleading, supposing all requirements of notice have been duly 
fulfilled, is an anachronism. The committee has no desire to see anything 
judicially considered that is not juridically presented, but it does desire to see 
the modes of juridical presentation in many of our jurisdictions much sim¬ 
plified. 

Roscoe Pound 
(For the subcommittee). 

Schedule F. 

MEMORANDUM OF DISSENT OF MR. ALLEN. 

I very heartily approve of all the recommendations of the report except Sched¬ 
ule D. The decision rendered by the Court of Appeals of New York in the case 
you mention certainly presents an instance in which it would be highly desir¬ 
able to have a review in the Supreme Court of the United States and a uniform 
construction of the Constitution of the United States; but I hesitate at any ex¬ 
tension of the jurisdiction of that overloaded court. I fear that the amendment 
proposed would add materially to the number of cases taken to that court, and 
that in a very large majority of them the inconvenience would outweigh the ad¬ 
vantage. Great delay, expense, and inconvenience inevitably result from an 
appeal to the Supreme Court of the United States, and we ought to be exceed¬ 
ingly careful that we do not open the door wider than necessity requires. 

Stephen IT. Allen. 


BRIEF FOR AMERICAN BAR ASSOCIATION IN SUPPORT OF BILL RELATING TO PROCEDURE 

OF UNITED STATES COURTS. 

[S. 3750; H. R. 1G461.] 

This bill was drawn by a committee of the American Bar Association. It has 
been under consideration by that associaton for five years. At the meeting at 
Seattle in August. 1908, it was much discussed and received the almost unani- 



40 


REFORMS IN LEGAL PROCEDURE. 


mous support of a large and representative meeting of the association. The bill 
was presented to the Sixtieth Congress, was discussed fully before the Judiciary 
Committee, and was amended to meet the criticisms of some members of the 
committee. In its amended form it passed the House of Representatives unani¬ 
mously February 6, 1911 (H. R. 31165). It was approved unanimously by the 
American Bar Association at its last meeting in Boston. The bill represents 
and was drawn and approved by three professional elements—the bench, the 
practicing lawyer, and the university. 

I. So far as procedure in appellate courts is concerned, what we wish to 
accomplish is this: That in the consideration in an appellate court of a writ 
of error or appeal judgment should be rendered upon the merits without per¬ 
mitting reversals for technical defects in the procedure below and without pre¬ 
suming, as many courts now do, that if there has been a violation in some par¬ 
ticular of some rule of law that violation has been prejudicial to the result. 
The effect of the first section of the bill that is now before you is to enact that 
the presumption shall be that the decision below was right, and that if it was 
erroneous in some detail the error did not affect the result. 

Perhaps no better argument can be stated for this proposition than a passage 
in the opinion of Mr. Justice Martin, of the Court of Appeals of New York. It 
expresses the great embarrassment that lawyers feel in the trial of important 
cases. In Lewis v. The Long Island Railroad Co. (162 N. Y., 50, 67) the judge 
delivering the opinion of the court says: 

“After carefully and studiously examining the great number of perplexing 
and difficult questions determined during the heat and excitement of a sharp 
and protracted trial we can but admire and commend the scrupulous and 
intelligent care and ability evinced by the trial judge and the almost unerring 
correctness of his rulings. When the number and variety of the questions 
raised are considered we are surprised not that a single error was committed, 
but that there were not many more.” 

In other words, our procedure is such that it is impossible, even with a 
judge of “ almost unerring correctness,” to get a verdict on the trial of an 
intricate cause that will stand the test of an appeal. It needs no argument 
to show that such procedure needs revision. The State of New York within a 
few years created a commission to inquire into the causes of the law’s delay. 
Several judges of the supreme court of that State were examined before the 
commission. Presiding Justice Hirschberg said, in the course of his exami¬ 
nation : 

“ I think that one great difficulty is that our system is distinctively an 
appellate system, and it is based upon the fundamental idea that a trial and a 
decision are always wrong. The result of it is that people indulge in litigation 
because the opportunities are great. They are sure of two appeals, and until 
the final decision is made they are in no hazard.” (Law’s Delay Commission 
Report, p. 269.) 

“ I have always thought it was a fatal feature of our judiciary system * * * 

the idea that if a man tries a suit and loses, he can appeal on the assumption 
that that was wrong, instead of appealing on the assumption that it was right. 
(Ibid., p. 270.)” 

Mr. Justice Scott agrees with this view: 

“Mr. Hayes. Have you any suggestion to make on appellate procedure? 

“ Judge Scott. You should change that rule of presumption; in the first place 
I think the appellant should have cast upon him the burden of establishing that 
there had been error below, and also of showing that that error had been 
prejudicial. None of use is so wise that he can try a long case without com¬ 
mitting some error. In addition to that the appellate division should have the 
power of awarding judgment. (Ibid., p. 288.)” 

Mr. Justice (now Senator) O’Gorman says: 

“ One of the gravest faults with our present mode of trial is the ease and 
frequency with which judgments are reversed on technicalities which do not 
affect the merits of the case, and which at no stage of the case have affected 
the merits. 

“ We have a rule in our State that the commission of an error upon the trial 
of a cause by a trial justice is presumptively prejudicial to the appellant, and 
instead of the appellant being required to persuade an appellate court that he 
has suffered substantial wrong, the moment that he can place his finger on a 
technical error the burden is at once shifted, and the respondent required to 
persuade the court that there was no harm following that particular ruling. 
Now, we all know, and there are very few who seek to vindicate the practice, 


REFORMS IN LEGAL PROCEDURE. 


41 


that very many cases are sent back from the appellate division upon alleged 
errors which have never affected the merits of the case. (Ibid., pp. 316-317.) 

“At the present time nearly every defeated party is willing to take a chance 
of securing a reversal on appeal. They have every encouragement. (Ibid., 
p. 319.)” 

In opposition to all the rules of technicality, which work such injustice and 
cause such delay, w^e urge that laid down by Chief Justice Marshall in Church v. 
Hubbart (2 Cranch, 232) : 

“ It is desirable to terminate every cause upon its real merits if those merits 
are fairly before the court, and to put an end to litigation where it is in the 
power of the court to do so.” 

The amendment proposed is the equivalent to that already adopted by the 
Legislature of New York in criminal cases. We quote from the opinion of the 
court of appeals in People v. Strollo (191 N. Y., 42). 

At pages 61, 67, the court said: 

“ Under the statutes our powers and duties in capital cases are strictly cor¬ 
relative. While we have power to reverse in the interests of justice, even where 
no exceptions are taken, it is also our duty to disregard errors which, although 
excepted to, do not affect the substantial rights of a defendant. Guided by this 
rule, we feel contrained to hold that none of the general criticisms referred to 
under this head present sufficient grounds for reversal. * * * 

“ These various elements of the question, considered in connection with the 
functions and powers of this court, bring us face to face with the situation 
that is apparently paradoxical but actually logical. That is to say, we might 
have a condition in which we would be compelled, in a civil case, to grant a new 
trial for a loss of original documentary evidence, although under similar condi¬ 
tions, in a case involving human life and liberty, we may be bound to deny 
such relief. And why should this seemingly anomalous difference exist? 
Because this is a court of statutory origin and vested with none but statutory 
jurisdiction. Thus it happens that in civil cases our powers are limited to 
the review of errors which are raised and presented by exceptions, while in 
criminal cases we are not only empowered but commanded to give judgment 
without regard to technical errors or defects, or to exceptions which do not 
affect the substantial rights of the parties. (Code Crim. Proc., sec. 542.) This 
power of review on criminal appeals is still further broadened in capital cases 
by the legislative direction that “when the judgment is of death, if it be satis¬ 
fied that the verdict was against the weight of evidence or against law, or that 
justice requires a new trial, whether any exceptions shall have been taken or not 
in the court below.” (Code Crim. Proc., sec. 527.) 

Similar legislation to that now proposed has been adopted in Illinois, Kan¬ 
sas, Ohio, and Wisconsin, and by constitutional amendment in California. 

In dealing with this important subject, we ask you to put yourselves in the 
attitude of a lawyer who has a righteous cause, and who naturally desires to 
bring it to trial and obtain final judgment for his client as soon as possible. 
Is not this the attitude you always want to occupy? Doubtless we are some¬ 
times called upon to defend a client who has no defense upon the merits. As 
long as the law gives the right to interpose a technical defense and prolong 
the litigation, the lawyer is blamed by many if he does not exert his skill to the 
uttermost for that purpose. When we look at our profession from the stand¬ 
point of the Commonwealth; when we consider that we are not only attorneys 
for a client but officers of the court, and charged with an important part in the 
administration of justice, we must admit that we occupy a humiliating position 
whenever we undertake to defeat it. It may be a lawyer’s duty to occupy this 
position under the existing system. All the more, therefore, is it our duty as 
citizens to endeavor to reform the system, so that these means of procrastina¬ 
tion shall no longer be available. 

The objection that is commonly taken to this doctrine, so far as it applies 
to the review of cases that have been tried before a jury, is that expressed in a 
letter that we have received from one of the Federal judges, to whom we sub¬ 
mitted the proposed bill. He puts it thus: 

“ If an appellate court either affirms or reverses because of its own opinion 
as to the merits, it substitutes a trial by judges for a trial by jury.” 

Our reply to this is that it misconceives the scope of the proposed reform. So 
far from depriving the verdict of the jury of its value, it tends to establish the 
verdict. Long experience in the trial of cases before a jury and conversation 


42 


REFORMS IN LEGAL PROCEDURE. 


with intelligent jurors of our acquaintance has convinced us that jurors pay 
much less attention to fine points of evidence or to nice distinctions in the 
charge than judges generally seem to suppose. In more than half the cases 
where judgments have been reversed on questions of evidence, the ruling in the 
court below did not affect the verdict in the slightest degree. This being the 
case, it is unjust that the parties should be put to the expense and delay of a 
new trial. 

Therefore, as practicing lawyers, it is clear to us that the presumption of the 
appellate court should be that a ruling on the evidence, which it deems errone¬ 
ous, did not affect the result. It should be for the defeated party to satisfy 
the appellate court that the ruling was actually prejudicial to him upon the 
merits. 

While we can not say that any of the Federal courts has ever sinned as much 
as some of the State courts, yet we would put upon the statute book a uniform 
rule for all the circuits, which will embody the rule that prevails in some of 
them, and which will make it impossible for some of the decisions to be made 
that the former chairman of this committee, Mr. Lehmann, of St. Louis, adverts 
to in an address he has recently delivered. We call attention to one, because 
it seems to us, on the whole, the most flagrant. Yet, under the existing system 
in some States, it is not only possible, but it has actually occurred. That was 
an indictment for rape. The proof was clear and the man was convicted, but 
a writ of error was sued out and the lawyer discovered this defect in the in¬ 
dictment. The constitution of Missouri requires that the indictment should 
conclude “ against the peace and dignity of the State,” but in engrossing the 
indictment the article “the” was omitted before the word “State.” The 
Supreme Court of Missouri held, in State v. Campbell (210 Mo., 202), that the 
omission was fatal, although they said (p. 234) : “The testimony as disclosed 
by the record in this case was amply sufficient to warrant the court in submit¬ 
ting the question to the jury.” They reversed the judgment of conviction. The 
indictment being held void, of necessity the guilty man would go free unless a 
new indictment should be found and the case tried again. 

There are other cases that might be cited where courts on appeal, particu¬ 
larly in criminal cases, have stretched the rule of error to the furthest limit. 
It is not in the interest of justice that this should be permitted. The maxim 
of the common law was that the judge himself is condemned when he acquits 
the guilty; but we have come, in many jurisdictions, to the very opposite of 
that, dependent, we may say, a little upon the character and temper of the 
judge who happens to sit on the case. Some judges are more technical than 
others and attach more importance to points like this than others do. That 
ought not to be the condition of the law. There ought to be a general rule 
formulated by Congress which shall control in all the circuits of the United 
States, so as to make these reversals for purely technical defects impossible 
in any of the Federal courts. 

Society has an interest in the punishment of the guilty. Under our system 
the accused has every chance in the first instance. The judge must charge that 
he can only be convicted if the jury find him guilty beyond a reasonable doubt. 
His counsel will probably argue that it is better that 99 guilty men should 
escape than that one innocent man should be convicted. If, after all that, the 
jury find the accused guilty, there is a strong presumption of his guilt; and it 
ought not to be possible for a person in that situation to be allowed to take ad¬ 
vantage of such technical errors, which do not affect the merits and which 
have nothing to do with the question of his guilt or innocence. We do not al¬ 
ways get the most skillful prosecuting attorneys, and under the present rule, 
as it is often administered, there is required of them almost preternatural skill 
and foresight in order to guard against question and objections taken in this 
way. 

II. The second clause of the bill was drawn so as to provide a method by 
which a verdict on questions of fact may be taken on the trial, reserving ques¬ 
tions of law for more deliberate consideration, either by the trial judge or in the 
appellate court. It authorizes the court to direct judgment to be entered upon 
the verdict or upon the point reserved, if conclusive, as its judgment upon such 
point reserved may require. 

This amendment gives additional value to the trial by jury. It will prevent 
the delay, expense, and consequent injustice caused by new trials upon every 
issue, when the judgment of the appellate court differs from that of the trial 
court upon some point of law. 


REFORMS IN LEGAL PROCEDURE. 


43 


case 


To quote from the opinion of the New York Court of Appeals in a recent 


thi'ee^nf^f vm^H ^ happens that cases appear and reappear in this court, after 
in mrWf where the plaintiff on every trial has changed his testimony, 

m oidei to meet the varying fortunes of the case upon appeal ” 

fraud and per3ury - (WaIters *• Syracuse 

°? er .. hand ’ a JUS ^ cause may be lost on the second trial because of 
°^. witnesses, or their departure to parts unknown. 1 * * * 

ihe practice we propose is the common-law practice. It prevails in England 
to-day under the judicature act. In that country final judgment is rendered on 
appeal m 90 per cent of the cases in which the judgment below is reversed: and 
in only 10 per cent of the reversals is a new trial ordered. 

As a matter of fact, the existing procedure in criminal law was framed at a 
time when it was really needed to protect the criminal, especially from political 
prosecutions. This is no longer necessary. The criminal is well protected. He 
must be first indicted by a grand jury of at least 13 men. They say, in finding 
the true bill, that the man is guilty of the offense. As Sir James Stephen points 
out m one of his books on criminal law, it is a remarkable thing to say that a 
man who by 13 of his neighbors has been declared guilty shall start off on his 
trial with a presumption of innocence. Still he does. The courts tell the jury 
all the way through, “ This man starts and carries through the trial with him 
this presumption of innocence.” Yet at least 13 of his neighbors have already 
said that he is probably guilty of the crime of which he is accused. The pre¬ 
sumption of innocence must be rebutted by sufficient evidence before the jury 
beyond a reasonable doubt, whereas in a civil case merely a preponderance of 
the evidence is sufficient. Then, when the prosecutor overcomes all those ad¬ 
vantages of the accused, there must be a unanimous verdict. One man can hold 
up the whole case or compel a mistrial. Again, under the present procedure, if 
there has been any technical error, even though it does not affect the merits, 
there must be a new trial. Every rule possible is made to protect the criminal. 

American courts are far more technical than the English. They have amended 
their old law 7 . AYe have adhered to it. They know that the intricacy and 
technicality of criminal procedure are obsolete, and no longer fitted for civiliza¬ 
tion. AA T e pride ourselves on our business capacity and our way of doing things 
in a common-sense way, and yet we cling to these old technicalities that tiie 
Englishman dropped 30 years ago. They pass over little things that we get a 
new trial for; they decide cases upon the merits more expeditiously and more in 
consonance with justice than w 7 e do. 

The American Bar Association, speaking for the bar of every State, urges 
upon Congress to reform these abuses and redeem the promise of Magna Charta 
that justice shall be denied or delayed to no man, and that the administration 
of justice shall not be so cumbrous, dilatory, and consequently expensive that 
it shall be obtainable only by the rich. 

In the President’s message, sent to Congress December 21, 1911, w 7 e find the 
following recommendation (p. 16) : 

“ The American Bar Association has recommended to Congress several bills 
expediting procedure, one of which has already passed the House unanimously, 
February 6, 1911. This directs that no judgment should be set aside or re¬ 
versed, or new trial granted, unless it appears to the court, after an examination 
of the entire cause, that the error complained of has injuriously affected the 
substantial rights of the parties, and also provides for the submission of issues 
of fact to a jury, reserving questions of law for subsequent argument and de¬ 
cision. I hope this bill will pass the Senate and become law 7 , for it w 7 ill simplify 
the procedure at law.” 

The President’s experience as a lawyer and a judge gives especial weight to 
this recommendation. We submit that it should receive careful consideration. 

We conclude with a quotation from the great Italian statesman, Cavour, 
w 7 hicli seems to us timely: 

“ I am not an alarmist; nevertheless, without being one, I think w T e can see 
at least the possibility, if not the probability, of stormy times. AVell, gentlemen, 
if you w 7 ish to take precautions against these stormy times, do you know the 


1 A notable instance of the delays under the present system is the Ilillmon case (145 

U. S., 285; 188 U. S., 208). Second judgment of reversal was 23 years after trial be¬ 

gun. In Springer v. Westcott (166 N. Y., 117), there were four appeals. The recovery 

was $900—for the contents of a trunk. 



44 


REFORMS IN LEGAL PROCEDURE. 


best way? It is to push reforms in quiet times, to reform abuses when these 
are not forced upon you by the extremists.” 

Everett P. Wheeler, New York, 
Russell Whitman, Illinois, 

R. E. L. Saner, Texas, 

(For American Bar Association.) 


BRIEF OF EVERETT P. WHEELER, ROSCOE POUND, AND FRANK IRVINE FOR AMERICAN 

BAR ASSOCIATION. 

Three objections are urged to the former bill referred to by its Senate number, 
4029. They relate to the first section of the proposed bill, which has for its 
object to authorize amendment from law to equity and vice versa. The objec¬ 
tions summarily stated are: 

(1) That the distinction between procedure at law and procedure in equity' 
is essential, so that it is impossible, by amendment, to transform a proceeding 
of the one sort into the other. 

(2) That the provision in question would break down an established prac¬ 
tice and give rise to great confusion. 

(3) That the effect of the measure would be simply to protect the incompetent 
pleader and compel the court to correct his mistakes. 

(4) That the power exists without a statute. 

I. 

The question whether the distinction between procedure at law and in equity 
is essential and fundamental may be argued in two ways. 

(a) From actual experience in systems where the distinction has been done 
away with; 

(b) A priori. Abundant judicial experience is at hand in about 30 code 
jurisdictions in the United States; also in England, Ontario, and Australia. In 
the jurisdictions in question the practice goes very far beyond anything which 
is proposed in the act in question. Perhaps the best statement of the modern 
view on this subject may be found in Sillaway v. Toronto (20 Ont. 98), in 
w T hich case Boyd, C., says: “ Modern procedure endeavors to work out the right 
and liabilities of all parties as far as possible in the same action.” 

Doubtless the code provisions in the States where code procedure obtains are 
sufficiently well known. It may be worth while, however, to call attention in 
this connection to section 24 of the English judicature act, and to the Ontario 
judicature act (sec. 57, subtitle 12). The latter statute was enacted as long ago 
as 1881, and no question has ever been made but that it works admirably. 

In addition, reference should be made to Massachusetts revised laws (chap. 
173, sec. 52), and Illinois laws of 1907 (p. 435, sec. 40), which provide for 
amendment from law to equity and vice versa. 

In the light of the foregoing it is folly to contend at the present day that 
any confusion can arise from permitting a cause once instituted on one side of 
the court to be transferred to the other without the necessity of discontinuance 
or dismissal and the bringing of an entirely new proceeding. 

It is not the purpose nor will it be the effect of this bill to obliterate or con¬ 
fuse the distinction between law and equity. That there is necessary in the 
nature of things any great distinction in the procedure by which legal and 
equitable rights are to be adjudicated and legal and equitable remedies admin¬ 
istered by no means follows. That there is necessary such a difference in pro¬ 
cedure as to render it impossible to amend proceedings begun on one side of the 
court so as to conform them to the practice on the other side, we strenuously 
deny. 

It is not necessary in support of this measure to advocate any merging or 
confusion of legal and equitable rights and remedies. It is not necessary to 
advocate any assimilation between the two systems of procedure. The bill 
carefully preserves the power to proceed under existing forms. Its sole object 
is to prevent a suitor from dismissal because it develops during the progress 
of the case that he has mistaken his remedy. The bill does not authorize the 
court under pleadings at law to administer equitable relief, or under pleadings 
in equity to proceed as at law. It merely authorizes the court to permit the 



REFORMS IN LEGAL PROCEDURE. 


45 


parties to amend their pleadings so as to conform the proceedings to the prac¬ 
tice prevailing on the appropriate side of the court. To use expressions taken 
from the brief of Messrs. Doran & Reath it is not an “ essential ” or “ unchange¬ 
able ” or “ changeless ” practice that throws the suitor entirely out of court and 
compels him to commence anew under the circumstances indicated. 

Over against the pronouncements of the judges in earlier cases under the New 
York code of 1848, which are cited in the brief of Messrs. Doran & Reath, we 
may put the following from a recent decision in a well-known code jurisdiction: 

“The cold, not to say inhuman, treatment which the infant code received from 
the New York judges is matter of history. They had been bred under the 
common-law rules of pleading and taught to regard that system as the perfec¬ 
tion of logic, and they viewed with suspicion a system which was heralded as 
so simple that every man would be able to draw his own pleadings. They pro¬ 
ceeded by construction to incorporate into the code rules and distinctions from 
the common-law system to such an extent that in a few years they had practi¬ 
cally so changed it that it could hardly be recognized by its creators.” 

Courts no longer deal with practice acts and statutes relating to improvement 
in procedure in this spirit. The Supreme Court of the United States, espe¬ 
cially in recent cases where it has been called on to review proceedings from 
jurisdictions where a newer procedure obtains, has taken an attitude quite dif¬ 
ferent from that which was taken in that court when the codes were first en¬ 
acted. It will suffice to invite a comparison of McFaul v. Ramsey (20 How., 
523, 525), Bennett v. Butterworth (11 How., 669), Farni v. Tesson (1 Black, 
309, 315), with the remarks of Mr. Justice Matthews in Ex parte Boyd (105 
U. S., 647, 656), and Mr. Justice Harlan in Black v. Jackson (177 U. S., 349, 364). 

It should be remembered that equity, as it has been put, is “ a system of re¬ 
medial law.” (Langdell, Brief Survey of Equity Jurisdiction, 22, 23.) One of 
the greatest legal scholars of modern times has told us that “ the day will come 
when lawyers will cease to inquire whether a good rule be a rule of equity or of 
common law,” and that it will suffice “ that it is a well-established rule adminis¬ 
tered by the high court of justice.” In other words, outside of the United 
States, a very complete fusion of law and equity in substance is going forward 
rapidly and producing no ill consequences; but nothing so radical is proposed 
by anyone for our courts. All that is proposed is that the necessity of throwing 
a party out of court because his proceeding is on the wrong side of the court 
be put an end to, and that, without the delay, expense, and annoyance of bring¬ 
ing a new proceeding, he be permitted to transform the misconceived proceed¬ 
ing into the proper one. 

When the old procedure was in force in England, in a well-known case Vice- 
Chancellor James, afterwards Lord Justice James, said, on one occasion: 

“ I am obliged to do that which is almost a scandal to our law, drive a man 
to * * * the other side of Westminster Hall and say I will dismiss your bill 
without prejudice to an action.” (Hood v. Northeastern R. Co., 8 Eq., 666.) 

See also the remarks of Dr. Odgers, in A Century of Law Reform (208). 

These remarks were made with reference to a system where law and equity 
were administered in different courts, and consequently amendment from one 
to the other was substantially impossible. In our Federal courts there is very 
much less excuse for such a situation, because in those courts law and equity are 
administered by the same tribunal, and it is a mere matter of the form of pro¬ 
ceeding. Hence the scandal, as Vice Chancellor James called it, is even greater. 

One concrete example from the United States reports may be adduced to 
show how the separation of law and equity in procedure too often works in 
practice. A building association took out a policy of insurance in the sum of 
$2,500 on a building. The building was vacant at the time, and was known to be 
vacant by the agent who issued the policy; but the policy contained the usual 
vacancy and nonvacancy clause, and no slip providing for vacancy was attached. 
Upon destruction of the building by fire action was brought upon the policy 
in a State where the State can administer both legal and equitable relief in 
the same proceeding. The cause was removed to the Federal circuit court by 
the insurance company. Here it became necessary for the insured, at its peril, 
to determine whether it would proceed at law on a theory of estoppel or would 
proceed in equity for reformation of the policy. As some 29 States in which 
the question had been passed on had held there was an estoppel available at law 
in such cases, the plaintiff went on at law accordingly. Trial was had and a 
verdict and judgment for the building company resulted. This judgment was 
affirmed on error by the circuit court of appeals. (Northern Assurance Co. v. 
Grand View Building Association, 101 Fed., 27.) 


46 


REFORMS IN LEGAL PROCEDURE. 


On certiorari tlie Supreme Court of tlie United States reversed the judgment 
on the ground that parol evidence was not admissible at law to show this 
estoppel. (Northern Assurance Co. v. Grand View Building Association, 183 
U. S., 308.) 

Whether any relief might be had in equity on the case presented the court 
could not consider. (Northern Assurance Co. v. Grand View Building Associa¬ 
tion, 203 U. S., 106, 107.) 

Thereupon the building association sued in the State court in equity for 
reformation of the policy, and limited its claim to $2,000 so as'to prevent 
removal. The State court granted reformation and decreed payment of the 
sum claimed, and this decree was affirmed by the State supreme court on appeal. 
(Grand View Building Association v. Northern Assurance Co., 73 Nebr., 149.) 

The case was then taken on error to the Supreme Court of the United States, 
which this time affirmed the decree on the ground that its first decision merely 
held that the plaintiff was on the wrong side of the court. (Northern Assur¬ 
ance Co. v. Grand View Building Association, 203 U. S., 106.) 

Thus eight years of litigation, involving two trials, one hearing in the circuit 
court of appeals, one in the State supreme court, and two in the Supreme Court 
of the United States were required to recover $2,000 of insurance on the right 
side of the court. 

Surely comment upon such a situation, in view of the practice which pre¬ 
vails in the great majority of English-speaking jurisdictions in the twentieth 
century, is unnecessary. 

II. 

The second objection is that established precedents would be broken down, 
and that confusion in practice for many years would result. To this proposi¬ 
tion, which is laid down in a somewhat dogmatic and confident a priori fashion, 
there is a ready and conclusive answer. Exactly such provisions as are con¬ 
tained in the act proposed have been in force in Massachusetts and in Illinois 
for several years, and there has not been the slightest complaint that anyone 
has been injured thereby, or that any confusion has resulted. On the contrary, 
testimony is uniform that a considerably more expeditious procedure and sav¬ 
ing of expense has resulted. 


III. 

The third objection is that the measure proposed would operate merely to 
protect the incompetent pleader from his blunders, and that it would compel 
the court to assume the burden of correcting his mistakes. With respect to the 
first two propositions involved in this objection, reference may be made to the 
Grand View Building Association litigation above related. There the mistake 
was not that of an incompetent blunderer. On the contrary, the condition of 
the law was such that counsel of great experience and learning, finding them¬ 
selves compelled to choose between two lines of authority, chose the line which 
had the support of an overwhelming majority of jurisdictions which had passed 
upon the question, and a line which was adopted by the Circuit Court of Ap¬ 
peals for the Eighth Circuit. Ultimately the judgment of the Supreme Court 
of the United States was that they had chosen the wrong line to the right result. 
It ought to have been possible for them to change the proceeding then and 
there into a suit for reformation. Instead of this, they were compelled to bring 
an entirely new proceeding, involving considerable delay and expense. 

With respect to the other proposition involved in the objection, it is enough 
to say that the parties themselves will seek the amendments. All that the court 
will do is what it does now—clearly determine whether a proceeding is prop¬ 
erly one at law or in equity. This done, instead of the party being thrown out 
of court and compelled to begin anew, he will be permitted to transform his 
proceeding into the one which he should have taken in the.first instance. 

IV. 

The last objection is that no statute is necessary to confer the power in ques¬ 
tion upon the Federal courts. We should like to think that this is so, and admit 
that a strong argument to that effect is possible. On the other hand, it must 
be admitted that many of the most eminent judges upon the Federal bench be¬ 
lieve the contrary. The case of Schurmeier v. Connecticut Mutual Life Insur¬ 
ance Co. (171 Fed., 1) is by no means conclusive to the question. In that case 


REFORMS IN LEGAL PROCEDURE. 


47 


one of tlie three judges who sat dissented, making a very strong argument upon 
the basis of the existing statutes and decisions. We are advised that Federal 
courts in other circuits which are not bound by the decision in question are 
refusing to follow it. Under such circumstances it would seem that the simple 
statutory relief provided for ought to be granted. 


V. 

The particular reform in equity practice embodied in section 2 is analogous 
to that which has so long been adopted at common law. A set-off for many 
years has been pleadable there. In the code States it is called a counterclaim. 
Before this practice was adopted the satirists keenly called attention to the in¬ 
justice of the former method. For example, Haliburton, in Chapter V of Sam 
Slick: 

“ JUSTICE PETTIFOG. 

“ If the poor defendant has an offset, he makes him sue it, so that it grinds 
a grist both ways for him, like the upper and nether millstone.” 

Why perpetrate in Federal equity practice this antiquated injustice? 

Everett P. Wheeler, 
Roscoe Pound, 

Frank Irvine, 

(For American Bar Association). 

The Chairman. If there are no other gentlemen desiring to be 
heard, the committee will now adjourn. 

Mr. Dodds. In connection with H. K. 16460, section 274A, as pro¬ 
posed does not in any wise state or make provision for delay or con¬ 
tinuance in case of changes that might be allowed ? 

The Chairman. Yes. 

Mr. Dodds. It seems to me that section should make provision. 

The Chairman. Would you not think that under the rules of the 
court that the court would have discretion? 

Mr. Dodds. It may have, but it seems to me it ought to be com¬ 
pulsory. 

The Chairman. The bill which I introduced last summer, and 
which I have reintroduced at this session, known as H. K. 18236, does 
specially provide that whenever a cause is to be transferred from 
one docket to the other that then the terms may be indorsed by the 
court—that is, as to cause, and so forth—and I think whichever one 
of these bills we will bring out ought to preserve that idea perhaps 
better than to leave it as a matter of inference. 

Mr. Dodds. I think it ought to make the terms compulsory. 

The Chairman. We invite your attention to the criticism just 
advanced by Mr. Dodds. 

Mr. Wheeler. It seems to me, Mr. Chairman and gentlemen, that 
these two bills might very well be united. Now, the section of bill 
12365- 

The Chairman. Now known as 18236. 

Mr. Wheeler. That possibly is not covered by the bar association 
bill, and I see no reason why that should not be added to the bar 
association bill as an additional section, and that the clause which 
you have in the first clause of your bill, “ upon certain terms that the 
court may impose,” would be suitable to add to the first section of 
our bill. Then the second section of 18236 could be added on the 
same subject and be perfectly harmonious. 

Mr. Faulkner. H. It. 18236 seems not to be touched upon by your 
bill, and it ought to be the law. 



48 


REFORMS IN LEGAL. PROCEDURE. 


Mr. Wheeler. It ought to be the law, certainly. 

Mr. Faulkner. That is where diverse citizenship is effectively 
urged, and whenever that point is raised, and even in the appellate 
court, it is permitted to be sufficiently alleged. 

Mr. Wheeler. I knew a case, Mr. Chairman, where a party de¬ 
signedly did not take that objection in the court below, but raised 
it for the first time in the Supreme Court, and they felt obliged 
under the law that it should be reversed on the ground of jurisdic¬ 
tion—gross piece of injustice, probably necessary under the law. 
These bills would relieve that entirely, and our committee would 
certainly favor that strongly. 

The Chairman. Without objection, the committee will stand 
adjourned. 

Thereupon, at 12 o’clock m., the committee adjourned. 


Committee on the Judiciary, 

House of Representatives, 

Tuesday , February 13, 1912 . 

The committee met at 10.30 o’clock a. m., Hon. Henry D. Clayton 
(chairman) presiding. 

Representative Burton L. French, of Idaho, appeared and made a 
statement relative to H. R. 16459, H. R. 16808, and H. R. 17249. 

H. R. 16808 and H. R. 17249, not previously printed in this record, 
are as follows: 

[H. It. 16808, Sixty-second Congress, second session.] 

In the House of Representatives. 

January 4, 1912. 

Mr. Lenroot introduced the following bill; which was referred to the Committee 
on the Judiciary and ordered to be printed. 

A BILL To amend an act entitled “An act to codify, revise, and amend the laws 
relating to the judiciary,” approved March third, nineteen hundred and eleven. 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled, That section two hundred and thirty-seven 
of “An act to codify, revise, and amend the laws relating to the judiciary,” 
approved March third, nineteen hundred and eleven, is hereby amended so as 
to read as follows: 

“ Sec. 237. A final judgment or decree in any suit in the highest court of a 
State in which a decision in the suit could be had where is drawn in question 
the validity of a treaty or statute of or an authority exercised under the United 
States and the decision is against their validity; or where is drawn in question 
the validity of a statute of or an authority exercised under any State, on the 
ground of their being repugnant to the Constitution, treaties, or laws of the 
United States; or where any title, right, privilege, or immunity is claimed 
under the Constitution or any treaty or statute of or commission held or au¬ 
thority exercised under the United States, and the decision is against the title, 
right, privilege, or immunity especially set up or claimed by either party, under 
such Constitution, treaty, statute, commission, or authority, may be reexamined 
and reversed or affirmed in the Supreme Court upon a writ of error. The writ 
shall have the same effect as if the judgment or decree complained of had been 
rendered or passed in a court of the United States. The Supreme Court may 
reverse, modify, or affirm the judgment or decree of such State court and may, 
at their discretion, award execution or remand the same to the court from 
which it was removed by the writ.” 



REFORMS IN LEGAL PROCEDURE. 49 

[H. It. 17249, Sixty-second Congress, second session.] 

In the House of Representatives. 

January 8, 1912. 

Mr. French introduced the following bill: which was referred to the Committee 
on the Judiciary and ordered to be printed. 

A BILL To amend section two hundred and thirty-seven of an act to codify, revise, and 
amend the laws relating to the judiciary. 

Be it enacted by the Senate and House of Representatives of the United States 
of America in Congress assembled. That a final judgment or decree in any suit 
in the highest court of a State in which a decision in a suit could be had, where 
is drawn in question the validity of a treaty or statute of or an authority exer¬ 
cised under the United States or where is drawn in question the validity of the 
statute of or an authority exercised under any State, on the ground of either 
being repugnant to the Constitution, treaties, or laws of the United States, or 
where any title, right, privilege, or immunity is claimed under the Constitution, 
or under treaty or statute of or commission held or authority exercised under 
the United States, may be reexamined or reversed or affirmed in the Supreme 
Court upon a writ of error. The writ shall have the same effect as if the 
judgment or decree complained of had been rendered or passed in a court of the 
United States. The Supreme Court may reverse, modify, or affirm the judgment 
or decree of such State court, and may, at their discretion, award execution 
or remand the same to the court from which it was removed by the writ. 

STATEMENT OF REPRESENTATIVE BURTON L. FRENCH, OF IDAHO. 

Mr. French. Mr. Chairman, the bill introduced by you and the 
other bills all propose an amendment to section 237 of the judiciary 
code, and have to do with the matter of appeal in certain cases from 
decisions from the State courts to the Supreme Court of the United 
States. 

Under our present system section 237 of the judiciary act provides 
for an appeal to the Supreme Court of the United States from a State 
court— 

First. In cases in which a decision affects the question of validity 
of a treaty or statute of or authority exercised under the United 
States, and the decision is against their validity. 

Second. Where there is drawn into question the validity of a stat¬ 
ute of or authority exercised under the State on the ground of their 
being repugnant to the Constitution, treaties, or laws of the United 
States, and the decision sustains the State law. 

Third. Where any title, right, privilege, or immunity is claimed 
under the Constitution or any treaty or statute of or commission held 
or authority exercised under the United States, and the decision is 
against their validity. 

Probably I should say that the bill of Representative Lenroot 
(H. R. 16808) seeks to modify the present statute, so as to provide 
for an appeal to the Supreme Court of the United States in the sec¬ 
ond class alone; that is, in cases where is drawn into question the 
validity of the statute of or an authority exercised under any State 
on the ground of their being repugnant to the Constitution, treaties, 
or laws of the United States. 

The bills of Representative Clayton and myself go further than 
that, and provide that an appeal shall lie, irrespective of the decision, 
where is drawn in question the validity of a treaty or statute of or 


32966—12-1 



50 


REFORMS IN LEGAL PROCEDURE. 


an authority exercised under the United States, or where any title, 
right, privilege, or immunity is claimed under the Constitution or 
any treaty or statute of or commission held or authority exercised 
under the United States. 

The gist of the matter that I would be glad to modify is included 
in the bill as introduced by Representative Lenroot. However, I see 
no reason why a similar appeal should not lie to the Supreme Court 
of the United States in cases referred to in the bills of Mr. Clayton 
and myself. 

So far as I am concerned, I shall be glad to urge the passage of 
either bill, and I would say to the committee that I was not aware 
that Mr. Clayton or Mr. Lenroot had introduced a bill on the subject 
until after I had prepared and introduced the bill touching this 
section. 

About one year ago I had occasion to be very deeply interested in 
the question that is referred to in these several bills. 

The Supreme Court of the United States, in the case of Lockner v. 
New York (198 U. S., 45), held that the New York statute was in¬ 
valid under which the State of New York sought to limit the number 
of hours of labor of employees in bakeries to not more than 60 hours 
per week or 10 hours per day, the Court of Appeals of New York 
having previously sustained the statute. 

In the case of Muller v. Oregon (208 U. S., 412), the Supreme 
Court of the United States sustained the Supreme Court of Oregon 
upon the validity of a statute which limited the hours of employment 
of women in laundries to not more than 60 hours per week. 

It is true that these two cases are not identical, and yet they are 
very similar. However, following the decision in the Lockner case, 
the Court of Appeals of New York in the case of State v. Williams 
(189 N. Y., p. 131) declared the State statute invalid which forbade 
night labor by women. 

This latter case, it would seem, is closely parallel to the Muller v. 
Oregon case, which was sustained by the Supreme Court of the 
United States. Yet, under our present statute, there is no way by 
which an appeal may be taken from the decision of the Court of 
Appeals of New York to the Supreme Court of the United States. 

If the decision had upheld the State law, of course an appeal could 
have been taken and the matter reviewed by the United States Su¬ 
preme Court. The State court in the Williams case undoubtedly 
relied much upon the decision of the Supreme Court of the United 
States in the case of State v. Lockner. 

So much for these particular cases. Probably during the next 
few years, as never before, the various States will enact legislation 
looking to the solution of various economic problems. It is impor¬ 
tant that this legislation should be harmonious, and it is important 
that all States may know within the earliest possible time what pro¬ 
visions of law will be sustained by the Supreme Court of the United 
States. 

It has been suggested that the amendments which I advocate 
would to some extent minimize the prerogatives of the States. How¬ 
ever, I can not agree with this criticism. The bills to which I have 
referred would provide an appeal to the Supreme Court of the 
United States, no matter what the decision of the State court, so 
long as it involved the question arising under the Federal Consti¬ 
tution, laws, or treaties. 


REFORMS IN LEGAL PROCEDURE. 


51 


At present there is that right to appeal whenever the decision of 
the State court is adverse to the Federal contention; otherwise not. 

It is altogether probable that at some time, from some State, the 
particular questions disposed of by the Court of Appeals of the 
State of New York in the Williams case will be reviewed by the 
Supreme Court of the United States. 

Why should we wait until an appeal shall be taken from the su¬ 
preme court of some State that, having enacted a similar law, has 
sustained its validity? Why not let the appeal go at once from 
the Court of Appeals of the State of New York? As I see it, our 
present statute merely means delay, and does not, in fact, conserve 
to the State any prerogative. 

It is not my purpose to detain the committee at any further 
length upon this subject, other than to ask that there be printed as 
a part of the hearings upon this question a paper prepared by Prof. 
W. F. Dodd, and which was published in the December number of 
the. Illinois Law Review. Prof. Dodd is assistant professor of 
political science in the University of Illinois, and his paper is most 
illuminating upon this subject. 

In talking with Prof. Dodd last summer he told me of his interest 
in this subject, and I urged him to prepare a statement or paper 
upon the question setting forth his views. I am sure that the com¬ 
mittee and the Members of Congress or those who may be inter¬ 
ested will find his discussion of exceedingly great value in connection 
with this subject: 


The United States Supreme Court as the Final Interpreter of the Federal 

Constitution. 1 

[By W. F. Dodd, assistant professor of the University of Illinois.] 

In every governmental organization where there exist both a central legislature 
and legislatures for subordinate territorial divisions—and particularly in countries 
organized under a federal system—there must be somewhere power to prevent encroach¬ 
ments by the local legislatures upon the powers of the central legislature. In strict 
theory, encroachments upon the powers reserved to the local bodies should be guarded 
against as carefully as encroachments by these local bodies upon the powers of the 
central legislature. But if a central government under a federal organization is to 
exercise its powers effectively, it, in any case, must have authority to prevent the 
states from exercising powers which conflict with its own. As a practical proposition, 
the National Government in the United States must be able to maintain its suprem¬ 
acy when the States seek to exercise powers which have been conferred upon the 
National Government. In theory the States should be equally as free to maintain 
their supremacy in the fields reserved to them, but in the absence of some organ 
independent of both state and central governments which might decide questions 
of conflict, it has been usual in all modem federal governments to entrust the decision 
of such questions to some organ or organs of the central government. In this way a 
decision of the question in conflict is obtained and the supremacy of Federal law 
over that of the component States is maintained, but the deciding body is one apt to 
be more tender of the powers of the Federal Government than of the reserved powers 
of the States. 2 

A number of the members of the Federal convention of 1787 clearly perceived that 
if the new Government were to be an effective one, it should possess, through some 
one of its organs, power to annul conflicting State laws, and proposals were repeatedly 
urged which should expressly confer such a power upon the National Legislature, upon 
the courts, or upon a council of revision composed of the Executive acting with “a 


• Reprinted from the December number of the Illinois Law Review. 

a In subordinate federal organizations, such as Canada and Australia, power may be vested in an inde¬ 
pendent organ of the British Imperial Government to preserve a balance between State and federal powers, 
and the judicial committee of the English privy council actually exercises such power to a certain extent. 






52 


REFORMS IN LEGAL PROCEDURE. 


convenient number of the national judiciary." ' 1 Such proposals were rejected, and 
the only express provision of the Federal Constitution which seeks to establish the 
supremacy of the Federal Constitution and laws is the one which provides that— 

“This Constitution, and the laws of the United States which shall be made in pur¬ 
suance thereof, and all treaties made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land; and the judges in every State 
shall be bound thereby, anything in the constitution or laws of any State to the,con¬ 
trary notwithstanding.” 2 

But it was quite clear that the National Government could not be effective if its 
powers were subject to conflicting interpretations by courts in 13 separate States, with 
the interpretation of the Federal Constitution and laws by the highest court of any 
State final and conclusive within the borders of that State. And in the third article 
of the Constitution it had been broadly declared that— 

“The judicial power shall extend to all cases, both in law and equity, arising under 
this Constitution, the laws of the United States, and treaties made, or which shall be 
made, under their authority.” 

And after enumerating the cases in which the Supreme Court should have original 
jurisdiction, it was provided that— 

“In all the other cases before mentioned the Supreme Court shall have appellate 
jurisdiction, both as to law and fact, with such exceptions and under such regulations 
as the Congress shall make.” 3 

These provisions were assumed by many of the farmers of the Constitution to author¬ 
ize the review of State decisions upon Federal questions by the Supreme Court of the 
United States, and no constitutional objections seem to have been raised in 1789 to 
the passage of that section of the Federal judiciary act which provided for the review 
of such State decisions. Not until later was the question of constitutional power raised, 
and it was effectually set at rest by the decisions of the United States Supreme Court 
in Martin v. Hunter’s Lessee (1816) and Cohen v. Virginia (1821). 4 * 

Section 25 of the Federal judiciary act of 1789 was repealed and reenacted with some 
changes in 1867, this revised form being substantially incorporated in the United 
States Revised Statutes as section 709. Somewhat amended again in 1875, the section 
now forms section 237 of the new Federal Judicial Code and reads as follows: 

“A final judgment or decree in any suit in the highest court of a State in which a 
decision in the suit could be had, where is drawn in question the validity of a treaty 
or statute of, or an authority exercised under, the United States, and the decision is 
against their validity; or where is drawn in question the validity of a statute of, or an 
authority exercised under, any State on the ground of their being repugnant to the 
Constitution, treaties, or laws of the United States, and the decision is in favor of their 
validity; or where any title, right, privilege, or immunity is claimed under the Con¬ 
stitution, or any treaty, or statute of, or commission held or authority exercised under, 
the United States, and the decision is against the right, title, privilege, or immunity 
especially set up or claimed, by either party, under such Constitution, treaty, statute, 
commission, or authority, may be reexamined and reversed or affirmed in the Supreme 
Court upon a writ of error. The writ shall have the same effect as if the judgment or 
decree complained of had been rendered or passed in a court of the United States. 
The Supreme Court may reverse, modify, or affirm the judgment or decree of such 
State court, and may, at their discretion, award execution or remand the same to the 
court from which it was removed by the writ.” 6 

A writ of error from the United States Supreme Court to the highest State court is 
given only where the decision in the State court is against the Federal right set up. 
Where the State decision sustains the Federal right, it is final and conclusive, and, in 
such a case, the State court is the final interpreter of the Federal Constitution and laws. 
The purpose of the Federal review was twofold: (1) To safeguard the powers of the 
United States, and (2) to safeguard the rights which individuals might claim under the 
Constitution, statutes, or authority of the United States. 

The first of these purposes was well stated by Chief Justice Taney in Commonwealth 
Bank of Kentucky v. Griffith: 

“The power given to the Supreme Court by this act of Congress was intended to 
protect the General Government in the free and uninterrupted exercise of the powers 
conferred on it by the Constitution, and to prevent any serious impediment from being 
thrown in its way while acting within the sphere of its legitimate authority. The right 


1 Hamilton’s proposal that State governors should be appointed by the Federal Executive sought to 
accomplish the same purpose. 

2 Art. VI, clause 2. 

s Art. Ill, sec. 2. 

4 1 Wheat., 304; 6 Wheat., 264. W. E. Dodd, Chief Justice Marshall and Virginia, 1813-1821, American 

Historical Review, XII, 776. 

*> 36 IJ. S. Statutes at Large, 1156 (Mar. 3, 1911).. 



REFORMS IN LEGAL PROCEDURE. 


53 


was therefore given to this court to reexamine the judgments of the State courts, where 
the relative powers of the General and State Governments had been in controvesry, and 
the decision had been in favor of the latter. It may have been apprehended that the 
judicial tribunals of the States would incline to the support of State authority against 
that of the General Government; and might, moreover, in different States give differ¬ 
ent judgments upon the relative powers of the two Governments, so as to produce irreg¬ 
ularity and disorder in the administration of the General Government. But when, 
as in the case before us, the State authority or State statute is decided to be uncon¬ 
stitutional and void in the State tribunal, it can not, under that decision, come in 
collision with the authority of the General Government; and the right to reexamine 
it here is not necessary to protect this Government in the exercise of its rightful powers. 
In such a case, therefore, the writ of error is not given.” 1 

The power of reviewing State decisions granted by the judicial code is sufficient to 
prevent encroachments by the States upon the powers properly belonging to the 
Federal Government, and such was its primary purpose. As to the other purpose of 
review, that of safeguarding rights which may be claimed under the Constitution of 
the United States, the best statement is that made by Justice Story in Martin v. 
Hunter’s Lessee: 

" The Constitution of the United States was designed for the common and equal 
benefit of all the people of the United States. The judicial power was granted for the 
same benign and salutary purposes. It was not to be exercised exclusively for the 
benefit of parties who might be plaintiffs, and would elect the national forum, but also 
for the protection of defendants who might be entitled to try their rights or assert their 
privileges before the same forum. Yet, if the construction contended for be correct, 
it will follow that as the plaintiff may always elect the State court, the defendant may 
be deprived of all the security which the Constitution intended in aid of his rights. 
Such a state of things can, in no respect, be considered as giving equal rights. To 
obviate this difficulty we are referred to the power which it is admitted Congress pos¬ 
sessed to remove suits from State courts to the national courts.” 2 

To what extent does the Federal judicial code permit a final decision by the United 
States Supreme Court of claims of private right which may involve questions of Federal 
constitutional law? If a Federal question is set up in the State court and the decision 
of the State court upholds the Federal right set up, it is quite clear that there is no 
review by the United States Supreme Coiud, 3 although one of the parties to the suit 
in the State court is injured by such holding—the party against whom the Federal 
question is set up has no right to a final decision of this question by the highest Federal 
court, although he may be as much interested and his rights as much affected as is the 
other party. He may, perhaps, avoid this difficulty in some cases by bringing his 
action in an inferior Federal court, but usually he has not even this recourse, because 
if the action is a criminal action under a State law or an effort to enforce rights under 
such a law it must ordinarily be brought in the State court. To take a specific illus¬ 
tration, in the recent case of Ives v. South Buffalo Railway Co., 4 Ives sought to 
recover compensation from the railway company under the New York compulsory 
workmen’s compensation law, and this law was held invalid, in part as a violation of 
the Federal Constitution. Clearly, there were here three parties in interest: Ives, who 
desired to obtain compensation; the railway company, which desired to avoid payment 
of compensation; and the State, which desires a final determination as to whether an 
important policy which it has sought to inaugurate is in conflict with the Federal 
Constitution. Yet the railway company, had the decision gone against it in the State 
court, would have had a right of review by the United States Supreme Court. The 
State decision, however, was in favor of the Federal Constitutional right set up by the 
railway company, and this decision is final and conclusive upon Ives and upon the 
State. From what has been said above, it must appear that the review granted by 
the terms of the Federal judicial code does not permit a final decision of the Federal 
question by the United States Supreme Court (1) where an individual asserts a right 
under a State statute which is held by the highest State court to be a violation of the 
Federal Constitution and (2) where the powers of a State and the interests of its citizens 
may be affected by the decision of a State court that a State law violates the Federal 
Constitution. 

When the Federal judiciary act was first framed, it was assumed that the State courts 
would be too liberal in upholding State laws attacked as violative of Federal rights; to 
quote Chief Justice Taney again, it was “apprehended that the judicial tribunals of 


1 14 Peters, 56 (1840). See also Martin v. Hunter’s Lessee, 1 Wheat., 304,347,348; Murdock v. Memphis, 20 
Wall., 590, 631, 632; Missouri v. Andriano, 138 U. S., 496; Whitten v. Tomlinson, 160 U. S., 231, 238. 

2 1 Wheat., 304. 348, 349. 

3Murdock v. Memphis, 20 Wall., 590, 631-632. 

^201 N. Y., 271 (1911). 





54 


REFORMS IN LEGAL PROCEDURE. 


the State would incline to the support of the State authority against the Federal 
Government, ” and there was thought to be need only of checking State encroachments 
on Federal power in this way, not of protecting the States themselves from State courts 
which might enforce Federal limitations more strictly than the United States Supreme 
Court itself. The condition assumed by Chief Justice Taney quite clearly existed 
until well into the nineteenth century, and probably until the freer use within recent 
years of the judicial power to annul legislation. But now we find that conditions have 
changed and that the States and their citizens really need the protection of the United 
States Supreme Court against the strict, and often illiberal, decisions of their own 
courts on Federal questions. 

A State decision adverse to a State enactment on Federal grounds is final under the 
provisions of the Federal judicial code. On this account the State courts should resolve 
every doubt in favor of a State enactment in such case, and in this way permit a final 
decision of the question of Federal constitutional law by the highest Federal court. 
Prof. Thayer stated very clearly the rule which should be followed by State courts in 
such cases: 

“As to how the State judiciary should treat a question of the conformity of an act 
of their own legislature to the paramount Constitution, it has been plausibly said that 
they should be governed by the same rule that the Federal courts would apply. Since 
an appeal lies to the Federal courts, these two tribunals, it has been said, should pro¬ 
ceed on the same rule, as being parts of one system. But under the judiciary act an 
appeal does not lie from every decision; it only lies when the State law is sustained 
below. It would perhaps be sound on general principles, even if an appeal were 
allowed in all cases, here also to adhere to the general rule that judges should follow 
any permissible view which the coordinate legislature has adopted. At any rate, 
under existing legislation it seems proper in the State court to do this, for the practical 
reason that it is necessary in order to preserve the right of appeal.” 1 

Until recent years State courts seem to have followed the rule laid down by Prof. 
Thayer and to have taken a view favorable to State powers when such powers were 
questioned on Federal grounds. The strict attitude of the State courts has developed 
since the Supreme Court of the United States acquired, under the fourteenth amend¬ 
ment, a wide control over State legislation. This attitude may be said to be due in part 
(1) to the narrower outlook of many of the State courts as compared with the Federal 
Supreme Court, and (2) to the narrow view which the Supreme Court of the United 
States has taken in many cases, and to the doubt upon the part of State courts as to 
just how liberal they may dare to be. No court likes to be overruled on appeal, and a 
State court, in case of doubt, 'may often prefer to decide against a State law, thus set¬ 
tling the question finally, rather than to decide in favor of the law and run the risk of 
being overruled on appeal by the Supreme Court of the United States. State courts 
can not go beyond the United States Supreme Court in liberality toward State enact¬ 
ments, and this almost necessarily means that they will be too cautious in order to 
avoid decisions which may later be overruled on appeal. 2 

Under the terms of the judicial code State courts are, therefore, free to construe the 
Federal Constitution as they please, so long as they exercise their power to invalidate 
rather than to sustain State enactments. Some illustrations will indicate more clearly 
the present situation. 

In State ex rel. Johnson v. Chicago, Burlington & Quincy Railroad Co. 3 there was 
under consideration a validly adopted State constitutional amendment, permitting 
counties and townships to levy a special road and bridge tax, but from the provisions 
of the amendment were excepted the cities of St. Louis, Kansas City, and St. Joseph. 
The court held this amendment invalid as a deprivation of “equal protection of the 
laws ’ under the Federal Constitution, on the ground that it was a discrimination in 
favor of the excepted cities as against other parts of the State, and this, although other 
parts of the State were permitted, not required, to levy the tax. It is unthinkable to 
suppose that the amendment here under discussion would have been held invalid by 
the Federal Supreme Court on the Federal grounds assigned by the State court for its 
decision. 

The New York Court of Appeals in People ex rel. Rodgers v. Coler, 4 * and in People i\ 
Orange County Road Construction Co., 6 held invalid a State law regulating hours and 
conditions of labor on State and municipal public works, the court in the latter case 
saying, through Judge Cullen, that: 

“The question is settled by the decisions both of this court and the Supreme Court 
of the United States. ” 


1 Thayer, Legal Essays, 37-38. 

2 Some of the matter in the succeeding pages is taken from my book on the Revision and Amendment of 
State Constitutions, pp. 244-258. 

3 195 Mo.. 228 (1906). 

* 166 N. Y. 1 (1901). 

6175 N. Y. 84 (1903). 



REFORMS IN LEGAL PROCEDURE. 


00 


About seven months after this utterance Justice Harlan, speaking for the Supreme 
Court of the United States upon a similar Kansas statute, said, upon the question 
raised as to its agreement with the Federal Constitution: 

“Indeed its constitutionality is beyond all question. ” 1 

The Supreme Court of Utah in 1904 and the Court of Appeals of New York in 1905 
declared invalid, as violating both the State and Federal Constitutions, State statutes 
restricting sales of stocks of merchandise in bulk, Judge Werner for the New York 
court saying: 

“No one will have the temerity to suggest that this drastic and cumbersome statute 
is not a restraint of the rights of ‘liberty’ and ‘property’ as these terms have been 
judicially declared to have been used in the Federal and State Constitutions. ” 2 

The Supreme Court of the United States had the “temerity” in 1910 to hold that 
an almost identical law was not a violation of the Federal Constitution. 3 

The New York Court of Appeals in the case of State v. Lochner 4 took a very liberal 
attitude toward legislation regulating hours of labor in bakeries and upheld the legis¬ 
lation, but was overruled by the Supreme Court of the United States in Lochner v. 
New York. 5 In the later case of State v. Williams, 6 the State court, seeking to profit 
by its previous experience, took a very strict view and annulled State legislation for¬ 
bidding night labor by women. The State court in this case took the ground that 
there was no constitutional warrant for making a discrimination between men and 
women, while the Federal Supreme Court in Muller v. Oregon, 7 decided but a short 
time afterwards, took a different view and sustained a law limiting the labor of women 
to 10 hours. The argument adopted by the Federal court would probably also have 
sustained the New York statute, but the State decision in New York was final under 
the terms of the Federal judiciary act. 

The Illinois Supreme Court in the case of Ritchie v. People 8 held Invalid a State 
law limiting the labor of women to eight hours a day in factories and workshops. A 
law of this sort pretty clearly would not have been upheld by the United States 
Supreme Court in 1895, and it is doubtful if it would be upheld to-day, but the vice 
of this Illinois decision is that it took such a strict position against any legislation 
applicable simply to women as to prevent or rather discourage such legislation in 
Illinois for about 14 years. After the liberal position taken by the United States 
Supreme Court in Muller v. Oregon (1908) the Illinois Legislature was, in 1909, induced 
to pass a law limiting to 10 hours the labor of women in mechanical establishments, 
factories, and laundries. This law was then sustained by the State court, which 
distinguished its decision from that of 1895, but the point of view of the two decisions 
is fundamentally different. 9 

The recent case of Ives v. South Buffalo Railway Co. 10 presents clearly some of the 
difficulties of the present situation. A compulsory workmen’s compensation law has 
been declared invalid as a violation of the “due process of law ’’ clauses of the Federal 
and State constitutions, whereas many persons think that the law would have been 
upheld by the United States Supreme Court as not a violation of the Federal Constitu¬ 
tion. As suggested below, if the Federal question were out of the way, it would be 
possible by a constitutional amendment to overcome the opposition of the State court 
on State constitutional grounds, but under present conditions the State decision on 
the question of Federal constitutional law is final. 

Of course the question will probably in time come to the United States Supreme 
Court. A compulsory workmen’s compensation law has been enacted in Washington, 
and the recent New Jersey statute on the same subject has features which may be 
considered compulsory. Should either of these laws be upheld by the State courts, 
the matter may in the near future reach the Federal Supreme Court. 11 But should the 
State decisions be unfavorable, an immediate settlement of the question is impossible, 
although some one State court may finally be found which would sustain such a law 


1 Atkin v. Kansas, 191U. S. 207 (1903). After the Federal decision the State statute was again declared 
invalid as a violation of the State constitution, and the State court was overruled by a constitutional amend¬ 
ment of 1905. People ex rel. Cossey v. Grout, 179 N. Y. 417. 

2 Block v. Griff, 27 Utah 387 (1904). Wright v. Hart, 182 N. Y. 330 (1905). The Indiana statute held 
invalid in McKinster v. Sager, 163 Ind. 671 (1904), was in terms discriminatory and was for this reason prop¬ 
erly held an impairment of Federal constitutional rights. The New York appelate division held valid in 
1908 an amended bulk sales law. Sprintz v. Saxton, 126 App Div. 421. 

3 Kidd v. Musselman, 217 U. S. 461. See also Lemieux v. Young. 211 U. S. 489. 

* 177 N. Y. 145. 

6 198 U. S. 45. 

e 189 N. Y. 131 (1907). 

7 208 U. S. 412 (1908). 

8 155 Ill. 98 (1895). 

s Ritchie v. Waypian, 244 Ill. 509 (1910). For other Illinois cases of this character see a nole by Prof. 
Henrv Schofield in 3 Illinois Law Review 303. 

io 201 N. Y., 271 (1911). 

n The Washington law was upheld bv the State supreme court in the case of State ex rel. Davis-Smith 
Co. v. Clausen, 117 Pac., 1101 (Sept. 27,1911). 


56 


REFORMS IN LEGAL PROCEDURE. 


and thus permit a final decision of the Federal question by the highest Federal court. 1 
This process may take 10 years, and in the meantime the States are left in uncertainty 
as to their powers. They are, it would seem, entitled to know more promptly whether 
they have or have not power under the Federal constitution to establish a system of 
compulsory workmen’s compensation or to exercise any other power which may be 
contested. 2 

But to what extent are the States at liberty to proceed to exercise the contested 
power, even after a final decision upon the Federal question has been obtained? 
Where the Federal Supreme Court has spoken, the State courts are in legal theory 
bound to follow it in their interpretation of the Federal Constitution, but there is no 
way in which this duty may be enforced in favor to State enactments, because no 
appeal lies to the United States Supreme Court if State enactments are declared invalid 
by the State court. In fact, State courts do not always follow the Federal Supreme Court 
in their interpretation of the provisions of the Federal Constitution. Then, too, no 
two acts are apt to be precisely alike, and a State court may plausibly hold an enact¬ 
ment invalid on Federal grounds if it varies in the slightest degree from a similar 
enactment upheld by the United States Supreme Court. 

Over against the legal theory that State courts must follow the Supreme Court of the 
United States in their interpretation of the Federal Constitution, it may be well to 
place a recent statement of one of our most eminent State judges. The Supreme Court 
of Iowa had held invalid as an interference with interstate commerce a State statute 
prohibiting any person from soliciting, taking, or accepting “any order for the purchase, 
sale, shipment, or delivery of any liquors.” After the decision of Delamater v. South 
Dakota 3 by the Supreme Court of the United States, it was contended that the statute 
was not a violation of the Federal Constitution as interpreted by the United States 
Supreme Court, and the State court, following the Federal decision, held the statute 
valid. But Judge McClain, in rendering the opinion of the court, used the following 
language: 

“We are of course not bound to follow the views of the Supreme Court of the United 
States in passing upon the validity of our statutes further than that we recognize our 
obligation not to enforce a statute which is in violation of the Constitution of the 
United States. We are not bound, therefore, by any obligation imposed upon us in 
the Federal Constitution to uphold a State statute merely because, in the view of the 
Supreme Court of the United States, it is not unconstitutional. But on the other hand, 
when we have held a State statute to be unconstitutional because in supposed conflict 
with the Constitution of the United States, and the Supreme Court of the United States 
has so interpreted the Federal Constitution that the supposed conflict is found not to 
exist, there is no good reason why we should not change our ruling so as to sustain the 
policy of the statutes of the State.” 4 

Prof. Schofield has stated the situation clearly: 

“De facto the highest courts of the several States are, within the borders of their 
respective States, ultimate judicial expounders of the Constitution and laws of the 
United States, and as such they have the de facto, though not the de jure, power to 
shut their eyes to, refuse to follow, and go directly against decisions of the Federal 
Supreme Court expounding the Constitution and laws of the United States, subject to 
this important limitation, however, namely: That in the exercise of this de facto power, 
the courts of the several States confine their activity to pressing the screws of the 
limitations of the Constitution and laws of the United States down on to their respec¬ 
tive States tighter than the Federal Supreme Court does.” 5 

State courts are therefore in practice now free to construe the Federal Constitution 
as they please, so long as they exercise this power to invalidate rather than to sus¬ 
tain State enactments. They have absolute and final power to annul any State enact¬ 
ment on any Federal ground which they may assign. For example, in the recent 
case of Jordan v. State 6 the Texas court of criminal appeals held invalid, as a vio¬ 
lation of the State and Federal Constitutions, a State law which made it unlawful for 
any person, firm, association or corporation to pay laborers in checks or orders redeem¬ 
able in goods or merchandise. The decision, based in large part on Federal grounds, 


1 Prof. Ernst Freund in the Survey, XXVI, 196 (Apr. 29, 1911). 

2 It may perhaps be suggested that in many cases it may be desirable in the interest of progressive meas¬ 
ures to delay rather than to hasten a final decision by the United States Supreme Court—that a strict 
decision at first would retard development, while a more liberal opinion may be expected after a 10-year 
period of discussion and education. There may be something to this suggestion, but even at the first a 
more liberal opinion may perhaps be expected from the United States Supreme Court than from many 
State courts. 

2 205 U. S., 93. 

4 McCollum v. McConaughy, 141 Iowa, 172 (1909). 

5 3 Illinois Law Review 303. 

e 51 Tex. Crim. App. Rep. 531 (1907). 



REFORMS IN LEGAL PROCEDURE. 


57 


entirely ignored the contrary holding in Knoxville Iron Company v. Harbison, 1 
although discussing cases in which this decision had been summarized. 

Summing up briefly the situation as to the review' of State decisions by the United 
States Supreme Court, it may be said: (1) that individual rights involving a Federal 
question are not properly safeguarded, because the party who sets up the Federal 
question has a right of appeal if the decision goes against him, while the party against 
whom the Federal question is raised has no such right, although his interests may be 
equally affected; (2) a State, one of whose laws is contested as violating the Federal 
Constitution, has no way of obtaining from the United States Supreme Court a final 
settlement of the question should its own court decide against the validity of its law; 
(3) a uniform interpretation of the Federal Constitution is not obtained, because until 
a decision upon the particular question at issue is rendered by the United States 
Supreme Court, each State court is entirely free to interpret the Federal Constitution 
as it pleases, provided it employs its power to sustain Federal rights which may be 
claimed before it; and, even after a decision of the particular question is obtained 
from the United States Supreme Court, State courts still have the pow r er to disregard 
such decision, so long as they interpret the United States Constitution and laws more 
strictly than does the highest Federal court. 

This situation may, it seems, be remedied by an amendment to the present Section 
237 of the Federal judicial code, so as to permit a review by the Supreme Court of the 
United States of State decisions involving Federal questions, irrespective of whether the 
• decision of the State court sustained or denied the Federal right set up; that is, by 
striking out the italicized words in this section, as quoted on page 291. The more 
serious difficulties of the present situation may, in fact, be obviated simply by striking 
out the words “and the decision is in favor of their validity” from the phrase, “where 
is drawn in question the validity of a statute of, or an authority exercised under, 
any State, on the ground of their being repugnant to the Constitution, treaties or laws 
of the United States, and the decision is in favor of their validity. ’ ’ The striking out of 
this clause would permit a final Federal decision in the most important series of cases 
in which such a decision is not now r available, although many cases would remain in 
which a review' by the United States Supreme Court would be desirable. 

Three arguments will probably be offered in opposition to the above suggestion: 
(a) that such an amendment wfill increase Federal power, and correspondingly reduce 
the powers of the States; ( b ) that it will increase the work of the United States Supreme 
Court; (c) that the result aimed at would not be accomplished, because most State 
decisions holding State statutes invalid are based on both State and Federal constitu¬ 
tional grounds. It may be well to devote some attention to each of these arguments: 

(a) The proposed amendment to the Federal judicial code does in fact enlarge the 
jurisdiction of the Supreme Court of the United States to review decisions of the 
highest State courts, and in this way diminishes to a certain extent the powder of the 
State courts. But there can result from it no diminution of State powers as a whole, 
for the enlarged review w r ould apply primarily where a State court has taken a narrow 
view of State powers, and would obtain a prompt determination as to whether a State 
legislature has, under the Federal Constitution, powers w r hich the State court has 
alleged that it does not possess. No State court can at present take a more liberal 
view of State powers, under the Federal Constitution than does the United States 
Supreme Court, for, if it does, an appeal may be taken to the highest Federal court. 
It is only when a State court restrains State legislative powers under the Federal con¬ 
stitution that its decision is now final, and the State court in restraining State powders 
is itself limiting them. A right of appeal in such cases can result in only one of two 
conclusions: either (1) the United States Supreme Court will affirm the State decision, 
denying the power of the State legislature, but in no way diminishing the power 
conceded to the State legislature by the State court; or (2) the United States Supreme 
Court will reverse the State decision and declare that the State legislature possesses, 
under the Federal Constitution, powers w hich the State court has said that it did not 
possess. The only result is either to concede to the State legislature powers which 
before it could not exercise because of the State decision, or to determine finally that, 
under the Federal Constitution, the State has not a pow r er already denied to it by the 
State court. 

Let us illustrate again from the recent case of Ives v. South Buffalo Railway Co., 2 
where the New York court of appeals held a compulsory workmen’s compensation 
law invalid as a violation of the “due process of law” clauses of the State and Federal 
Constitutions. At present, this decision is final on both State and Federal constitu¬ 
tional grounds. A right of appeal wmuld permit a final determination as to whether 
the law is actually a violation of the Federal Constitution, and, if not, the State would 


183 U. S. 13 (1901). 


2 201 N.Y., 271 (1911). 





58 


REFORMS IN LEGAL PROCEDURE. 


be able to overcome the decision on State grounds by a State constitutional amend¬ 
ment and to exercise the disputed power. A Federal decision here could not further 
limit State powers; it might, and, perhaps would, remove a limitation placed upon 
State power by the State decision. 

(6) It can not, of course, be definitely determined to what extent an enlarged right 
of review under the suggested amendment would increase the work of the United 
States Supreme Court, and it must be agreed that this court is already overburdened. 
Confining our discussion for the moment to cases in which the Federal court might, 
under such an amendment, review State decisions holding invalid a State authority or 
statute as violative of the Federal Constitution, treaties, or laws, it is difficult to see 
how the work of the United States Supreme Court would be materially, if at all, 
increased. The important difference will be that the question will come to that court 
more promptly. For example, the question as to the validity of a compulsory work¬ 
men’s compensation law will almost certainly come before the highest Federal court 
at some time, for some State court will be found liberal enough to uphold such a State 
enactment on Federal grounds, and to permit a review by the United States Supreme 
Court under the terms of the present judicial code. The question must be passed 
upon at some time; under the present judicial code, such a decision may be postponed 
for 10 years—under the proposed enlargement of Federal review, it could be decided 
more promptly. 

As to cases in State courts involving questions as to the “validity of a treaty or stat¬ 
ute of, or an authority exercised under, the United States,” a grant of review where 
the decision is in favor of, as well as where it is against, their validity, would probably 
not increase materially the work of the United States Supreme Court, and the same 
would probably be true as to State decisions where “any title, right, privilege, or immu¬ 
nity is claimed under the Constitution, or any treaty or statnte of, or commission held 
or authority exercised under the United States.” If there is serious question as to 
the constitutionality of any power exercised or sought to be exercised under the 
authority of the United States, this question must sooner or later be presented to the 
United States Supreme Court, by virtue of an adverse State decision, or through a 
proceeding commenced in the inferior Federal courts. The result here also would 
probably be a prompter settlement of such questions, rather than a material increase 
in the number of cases presented to the Federal Supreme Court. 

(c) In order to discover whether the amendment suggested above to the Federal 
Judicial Code would accomplish the purpose aimed at, we must discuss somewhat 
fully the extent to which the United States Supreme Court takes or declines jurisdic¬ 
tion in cases brought from State courts under the terms of the present law. 

In perhaps the greater number of cases in which the United States Supreme Court 
is asked to review State decisions, the State decision sought to be reviewed involves 
both a Federal and a State question. Inasmuch as the United States Supreme Court 
confines itself to the review of the Federal question only, that court has uniformly 
declined to consider a State case on its merits if the decision of the State court might 
properly have been sustained on non-Federal grounds, even though a Federal question 
were also presented and decided in such a way as to give jurisdiction. The rule is 
stated as follows by Justice Bradley: 

“Where it appears by the record that the judgment of the State court might have 
been, based either upon a law which would raise a question of repugnancy to the Consti¬ 
tution, laws, or treaties of theUnited States, or upon some other independent ground ; and 
it appears that the court did, in fact, base its judgment on such independent ground, 
and not on the law raising the Federal question, this court will not take jurisdiction 
of the case, even though it might think the position of the court an unsound one. 
But where it does not appear on which of the two grounds the judgment was based, 
then, if the independent ground on which it might have been based was a good and 
valid one, sufficient of itself to sustain the judgment, this court will not assume 
jurisdiction of the case; but if such independent ground was not a good and valid one, 
it will be presumed that the State court based its judgment on the law raising the 
Federal question, and this court will then take jurisdiction.” 1 

Section 25 of the Federal judiciary act of 1789 contained the clause: “But no other 
error shall be assigned or regarded as a ground of reversal in any such case as aforesaid 
than such as appears on the face of the record and immediately respects the before- 
mentioned questions of validity or construction of the said constitution, treaties, 
statutes, commissions, or authorities in dispute.” This clause was omitted in 1867, 
and in the case of Murdock v. Memphis 2 the contention was advanced that this 
omission left all questions raised in the State court open to review by the United States 
Supreme Court on writ of error. Justice Bradley, in a dissenting opinion, contended 


Klinger v. Missouri, 17 Wall., 257 (1872). 


2 20 Wall., 590 (1875). 





REFORMS IN LEGAL PROCEDURE. 


5$ 

that all questions, either State or Federal, should be reviewed by the writ of error, 
and a somewhat similar position was taken by Justices Clifford and Swayne; under 
these views, the Federal question should have been reviewed, irrespective of whether 
there was adequate non-Federal ground for the decision of the State court. But a 
majority of the court took the opposite view and Justice Miller, in rendering the 
decision, said: 

“But when we find that the State court has decided the Federal question erroneously 
then, to prevent a useless and profitless reversal, which can do the plaintiff in error 
no good, and can only embarrass and delay the defendant, we must so far look into 
the remainder of the record as to see whether the decision of the Federal question 
alone is sufficient to dispose of the case, or to require its reversal; or, on the other 
hand, whether there exist other matters in the record actually decided by the State 
court which are sufficient to maintain the judgment of that court, notwithstanding 
the error in deciding the Federal question. In the latter case the court would not be 
justified in reversing the judgment of the State court. * * * 

“If it [judgment of State court involving Federal question] erroneously decided 
against plaintiff in error, then this court must further inquire, whether there is any 
other matter or issue adjudged by the State court, which is sufficiently broad to main¬ 
tain the judgment of that court, notwithstanding the error in deciding the issue raised 
by the Federal question. If this is found to be the case, the judgment must be 
affirmed without inquiring into the soundness of the decision on such other matter or 
issue. 

“But if it be found that the issue raised by the question of Federal law is of such 
controlling character that its correct decision is necessary to any final judgment in 
the case, or that there has been no decision by the State court of any other matter or 
issue which is sufficient to maintain the judgment of that court without regard to the 
Federal question, then this court will reverse the judgment of the State court, and 
will either render such judgment here as the State court should have rendered or 
remand the case to that court, as the circumstances of the case may require.” 1 

In order to indicate clearly the operation of this rule, it will be well to discuss several 
cases in which it has been applied by the United States Supreme Court. In the case 
of Giles v. Teasley, 2 Giles alleged that the provisions of the Alabama constitution of 
1901, with respect to registration and voting, were a violation of the fifteenth amend¬ 
ment, and brought actions in the State courts—one to recover damages against the 
board of registrars of Montgomery County because of their refusal to register him as a 
qualified voter, and the other for a mandamus to compel his registration as a qualified 
voter. On demurrer, both suits were dismissed by the State courts, and writs of error 
were sought to the United States Supreme Court. The writs of error were dismissed 
because the United States Supreme Court thought there was sufficient non-Federal 
ground to sustain the State decision. This position was, perhaps, not open to question 
as far as concerns the application for mandamus, for Giles, himself contesting the 
legality of the registration board, could not, as the State court said, have mandamus 
to compel action by a body which he alleged to be unlawful. As to the action for 
damages, the position of the United States Supreme Court will sufficiently appear 
from a statement in the opinion of the court, as rendered by Justice Day: 

“The first ground of sustaining the demurrer is, in effect, that, conceding the allega¬ 
tions of the petition to be true, and the registrars to have been appointed and qualified 
under a constitution which had for its purpose to prevent negroes from voting and to 
exclude them from registration for that purpose, no damage has been suffered by the 
plaintiff, because no refusal to register by a board thus constituted in defiance of the 
Federal Constitution could have the effect to disqualify a legal voter, otherwise 
entitled to exercise the elective franchise. In such a decision, no right, immunity, 
or privilege, the creation of Federal authority, has been set up by the plaintiff in 
error and denied in such wise as to give this court the right to review the State decision. 
In the ground first stated we are of the opinion that the State court decided the case 
for reasons independent of the Federal right claimed, and hence its action is not 
reviewable here.” 

The State court assuming, simply for the purpose of argument, that the State pro¬ 
visions were invalid, said, in effect, that an interference with a Federal right under 
an unconstitutional State enactment is not an interference with a Federal right, and 
the United States Supreme Court said that this constituted a sufficient non-Federal 
ground to sustain the decision. The Federal court overlooked entirely the fact that 
Giles had been deprived of an alleged Federal right under color of State authority 


i 20 Wall., 635,636. Chief Justice Waite took no part in this decision. See also Eustis v. Bolles, 150 U. S. 
361 (1893). 

» 193 U. S., 146 (1904). » 



‘60 


REFORMS IN LEGAL PROCEDURE. 


and that the State court had decided against him. This question was clearly a Federal 
question which formed the whole ground of the State decision with respect to the action 
for damages. The argument adopted by the United States Supreme Court would 
permit it to avoid the review of any Federal question presented. 

The recent case of Berea College v. Kentucky 1 presents another illustration, of what 
the United States Supreme Court considers a sufficient non-Federal ground to sustain 
a State decision without making necessary a review of the Federal question. In this 
case there was involved a Kentucky statute making it unlawful for “any person, cor¬ 
poration, or association of persons to maintain or operate any college, school, or insti¬ 
tution where persons of the white and negro races are both received as pupils for 
instruction.” Berea College contested the validity of this statute as a deprivation 
of “due process of law” under the fourteenth amendment; the statute was sustained 
by the State court, and the case was brought to the United States Supreme Court on 
writ of error. The United States Supreme Court, in an opinion rendered by Justice 
Brewer, declined to consider the Federal question raised, but affirmed the State deci¬ 
sion on the ground that the State law might properly be considered an amendment to 
the corporate charter of Berea College, and that this presented a sufficient non-Federal 
ground to support the decision of the State court. Justice Harlan’s dissenting opinion 
seems more satisfactory, in its view that the State statute was not separable so as to be 
applied to corporations only, and that the case fairly raised the Federal question as to 
whether it is “due process of law” to forbid the coeducation of whites and negroes. 

But the cases of Giles v. Teasley and Berea College v. Kentucky involved questions 
as to the social and political rights of negroes, subjects upon which the United States 
Supreme Court has uniformly shown itself loath to pass. The case of Steamboat 
Navigation Co. v. Reybold 2 may also throw some light on what is regarded as a suf¬ 
ficient non-Federal question to sustain a State decision. Reybold, in violation of a 
Federal statute, obtained an assignment from the steamboat company of a claim which 
it had against the United States, and through Reybold’s efforts the claim was collected 
and paid to the company. He then sued to recover the money on two counts: (1) For 
money had and received and (2) on a quantum meruit, for work and labor performed. 
The lower court charged in favor of Reybold on both counts, and the jury returned a 
verdict for Reybold, but for a sum slightly less than that collected from the United 
States. This judgment was affirmed by the highest State court and the case brought 
to the United States Supreme Court on writ of error. This court, speaking through 
■Justice Lamar, held that the non-Federal ground of quantum meruit was sufficient to 
sustain the judgment; and that the case, therefore, did not necessarily involve any 
question under the Federal statute forbidding the assignment of claims. The court 
overlooked the fact that Reybold recovered substantially the whole amount which 
he might have recovered had the assignment of the claim been valid, and that the 
•position taken in this case would permit a complete evasion of the purpose of the 
Federal statute. 

The bearing of the above discussion upon the subject here under consideration will 
be appreciated when it is suggested that State decisions declaring State laws invalid 
are frequently, perhaps usually, based on both State and Federal constitutional 
grounds. Practically all the State constitutions contain guaranties substantially 
equivalent to that of the fourteenth amendment, “that no person shall be deprived 
of life, liberty, or property without due process of law.” Now, the State courts are 
the final judicial interpreters of their State constitutions, and “due process of law” 
in any State constitution means what the court of that particular State interprets it 
to mean. 

Under these conditions it is perhaps not surprising to find that “due process of 
law ” often means one thing in one State and another thing in some other State, and 
that it means something still different as interpreted by the Supreme Court of the 
United States. Under State constitutional provisions identical with, or substantially 
•equivalent to, those in the fourteenth amendment, State courts have frequently 
annulled legislation when similar legislation has been upheld by the United States 
Supreme Court. 

So, in Colorado an eight-hour day for mines and smelters was held to be a violation 
of the State constitution, although upheld by the United States Supreme Court as 
not violative of the Federal Constitution. 3 Under the Federal “dueprocess of law” 
•clause it is not unlawful to forbid payment of wages in store orders not redeemable in 
-cash, but under a practically identical clause in Missouri such action is unlawful. 4 
Under the Constitution of the United States it is not improper to require that coal be 


i 211 U. S., 45 (1908). 

•2 142 U. S., 636 (1892). 

■ Holden v. Hardy, 160 U. S., 366 (1898); in re Morgan, 26 Colo., 415 (1899). 

4 Knoxville Iron Co. v. Harbison, 183 U. S. (1901); State v. Missouri Tie & Timber Co., 181 Mo., 536 (1904) 





REFORMS IN LEGAL PROCEDURE. 


61 


weighed before screening in order to determine the wages of miners, but under similar 
State constitutional provisions such legislation is invalid in Illinois, Ohio, and Penn¬ 
sylvania. 1 Laws placing limitation upon the sale of stocks of merchandise in bulk 
are not violative of the “due process of law ” clause of the Federal Constitution as inter¬ 
preted by the United States Supreme Court, but do violate similar provisions in the' 
State constitutions of Ohio and Illinois. 2 A law regulating hours and conditions of 
labor on State and municipal public works in New York was at first held invalid 
violating both the State and Federal Constitutions; a decision of the United States 
Supreme Court then held such a law not violative of the Federal Constitution, and a 
subsequent decision of the New York Court of Appeals declared the same statute 
invalid as a violation of the State constitution; and the' Supreme Court of Ohio also 
holds similar legislation to be violative of state constitutional provisions not dissimilar 
from those in the fourteenth amendment. 3 

In some States, as, for example, in Illinois, decisions as to “due process” and the 
“equal protection of the laws” are usually based on the State constitutional provi¬ 
sions alone, and results are reached which limit State legislative action to a much 
greater extent than would the similar Federal clauses as interpreted by the United 
States Supreme Court. 4 Since the fourteenth amendment has placed private rights 
under the protection of the Federal Constitution, the power of State courts to annul 
legislation on State “due process” and “equal protection of the laws” clauses has 
ceased to be of any advantage for the protection of private rights. The power of State 
courts, on the basis of such State provisions to annul State enactments, may under 
present conditions be likened to a fifth wheel on the governmental coach. Such 
State constitutional provisions and State decisions based upon them perform no useful 
function in protecting individual rights; they simply serve to retard a final and uni¬ 
form settlement of questions of public policy in so far as they are dependent upon 
constitutional construction. A conservative or reactionary State court may, under 
present conditions, block for a while legislation approved by other State courts and 
by the United States Supreme Court, but even though such action may at times prove 
of advantage, the advantage is much more than offset by the distrust of the courts 
resulting from it. 

But under the present situation we have both Federal and State constitutional 
guaranties as to “due process of law” and “equal protection of the laws,” and a State 
court, in declaring a State law invalid, may base its decision upon both of these guar¬ 
anties or upon either of them. If a State court bases its decision on a State constitu¬ 
tional provision alone, such decision may be overcome by a State constitutional 
amendment, if the people are sufficiently interested to do this, and the power denied 
by the State court as a violation of the State constitution may be placed in the State 
constitution itself; such a proceeding was resorted to in Colorado to overcome the 
decision In re Morgan, and in New York to overcome decisions in that State with 
respect to labor on public works, 5 and action of this sort is possible in all States except 
those whose constitutions, as in Illinois, are practically unamendable. 

Under present conditions if a State court held a statute invalid as a violation of the 
State constitution or as a violation of both State and Federal constitutions, the people 
of the State may overcome the court’s State grounds by a constitutional amendment, 
but the State court may then hold the State constitutional amendment invalid as a 
violation of the Federal Constitution, and such decision is final. 6 So that, by its 
State constitutional amendment, no advance would have been made. If a State 
court declares a State statute invalid on Federal grounds alone, such a decision, as 
has already been suggested, is not now open to review by the United States Supreme 


1 McLean v. Arkansas, 211 U. S., 539 (1909); Millet v. People, 117 Ill., 294 (1886); Ramsev v. People, 142 
Ill 380 (1892); Harding v. People, 1G0 Ill., 459 (1896); In re Preston, 03 Ohio St., 428 (1900); Commonwealth 
v. Brown, 8 Pa., Super. Ct., 339 (1897). The Ohio case appears to be in part based on the Federal Consti¬ 
tution, as was also the Colorado advisory opinion, In re House bill No. 203, 21 Colo., 27 (1895). It should 
be noted that these State decisions antedate by a number of years the decision of the United States Supreme 
Court. The statute involved in Harding v. People, 160 Ill., 459, was discriminatory, but perhaps no more 
so than that involved in McLean v. Arkansas. 

2 Lemieux v. Young, 211 U. S., 489 (1909); Kidd v. Musselman, 217 U. S., 461 (1910); Miller v. Crawford, 
70 Ohio St., 207 (1904); Off v. Morehead, 235 Ill., 40 (1908). The Ohio statute, however, was stricter than 
those upheld by the United States Supreme Court. 

3 People ex rel. Rodgers v. Coler, 166 N. Y., 1 (1901); People v. Orange County Road Construction Co7 
175 N. Y., 84 (1903); Atkin v. Kansas, 191 U. S., 207 (1903); People ex rel. Cossey v. Grout, 179 N. Y., 4 ‘ 
(1904): Cleveland v. Clements Bros. Construction Co., 67 Ohio St., 197 (1902). 

4 See Starne v. People, 222 Ill., 189 (1900), and Massie v. Cessna, 239 Ill., 352 (1909). 

5 For other cases of this character see my Revision and Amendment of State Constitutions, 238. 239. 

e In State ex rel. Johnson v . C. B. & Q. R. R., 195 Mo., 228 (1906), the State court held a State constitu¬ 
tional amendment invalid on Federal grounds which appear not well taken, but the decision was final. 
In the cases referred to above of constitutional amendments overcoming State decisions on State constitu¬ 
tional grounds, the Federal constitutional questions had already been settled by the United States Su¬ 
preme Court. 



62 


REFORMS IN LEGAL PROCEDURE. 


'Court, but would become so under the amendment proposed in this paper to the 
Federal Judicial Code. 

But if a State law is declared invalid on both State and Federal grounds, what will 
be the situation if the Judicial Code is amended in accordance with the suggestion 
made above? Let us take again, by way of illustration, the situation presented by 
the recent decision of the New York court of appeals in the case of Ives v. Soutn 
Buffalo Railway Co. 1 Here the decision is based on both State and Federal grounds, 
but. in the conclusion of the opinion of the court Judge Werner said: 

“How far these late decisions of the Federal Supreme Court 2 are to be regarded as 
•committing that tribunal to the doctrine that any citizen may be deprived of his pri¬ 
vate property for the public welfare we are not prepared to decide. All that is neces¬ 
sary to affirm in the case before us is that in our view of the constitution of our State 
the liability sought to be imposed upon the employers enumerated in the statute 
before us is a taking of property without due process of law, and the statute is therefore 
void. ’ 5 

And Chief Judge Cullen, in a concurring opinion, said that— 

“The decision in the Noble Bank case is not controlling upon this court in the 
•construction of the constitution of our own State.” 3 

(dearly this decision is based in large part on the State constitution, and announces 
the view that “due process of law” in the State constitution is different from “due 
process of law” in the Federal Constitution. But both clauses are involved. As 
already suggested, this decision is, under present conditions, conclusive as to both 
State and Federal questions. But let us assume for the moment that the judicial 
code has been extended so as to give the United States Supreme Court power to review 
State decisions on Federal questions, irrespective of whether the decisions below 
were in favor of or opposed to the Federal ground set up, and that an amendment to 
the State constitution expressly authorizes compulsory workmen’s compensation. 4 
The State court, if it again holds the State enactment invalid, must do so on Federal 
•grounds alone, and the enlarged right of review would permit the case to be taken 
promptly to the United States Supreme Court for a final decision of the Federal 
question. 

But the original decision having been based on both State and Federal grounds, is 
there no way by which the Federal question alone may be presented to the United 
States Supreme Court for review and a decision obtained as to the State’s powers 
under the Federal Constitution before the State resorts to the long and cumbersome 
process of amending its constitution? For before resorting to the amending process a 
State would prefer, if possible, to know whether an amendment will be worth while 
or whether the proposed legislation will be held by the United States Supreme Court 
to be a violation of the Federal Constitution. Now, inasmuch as a Federal question 
was directly passed upon in Ives v. South Buffalo Railway Co., let us suppose that 
Ives seeks to obtain a review by the Federal Supreme Court, again assuming that the 
judicial code has been amended so as to confer jurisdiction where the decision of 
the State court was in favor of the Federal right set up and against the validity of 
the contested State law. What would the United States Supreme Court do under the 
principle of Murdock v. Memphis? It would dismiss the writ of error for the reason 
that there was sufficient non-Federal ground to sustain the decision of the State court, 
and the question of Federal constitutional law would remain undetermined. 

The Federal Supreme Court will decline to consider the Federal question where a 
non-Federal question is found to furnish a sufficient basis for the State decision. A 
State “due process ” clause and the Federal “due process” clause being both made the 
basis of decision in the State court, the non-Federal ground is sufficient for the dispo¬ 
sition of the case, and the United States Supreme Court would decline, for this reason, 
to exercise its power of review. And the non-Federal ground being clearly sufficient 
to support the case, the Federal question may be considered merely a moot question 
upon which Congress, under the principle of the separation of powers, has no authority 
to require a decision by the United States Supreme Court. A suggestion made by the 
minority of the court in Murdock v. Memphis presented another possible way of hav¬ 
ing the United States Supreme Court review the Federal question on a writ of error, 
even though the non-Federal question were sufficient to dispose of the case. Here 
three members of the court contended that the judiciary act as altered in 1867 brought 
the whole case decided in the State court to the United States Supreme Court for 
review, and that if the Federal question were found to be wrongly decided all ques¬ 
tions, whether Federal or non-Federal, should be subject to review. In such a view 
all Federal and sflso all State questions might be reviewed. But the majority of the 


1 201 N. Y., 271 (1911). 

2 In bank guaranty cases, Noble State Bank v. Haskell, etc., 219 U. S., 104-127 (1911). 

a 201 N. Y., 271, 298, 317, 319. 

* In New York proposals to amend the State constitution are already under way. 



REFORMS IN LEGAL PROCEDURE. 


63 


court took the view that such an enlargement of the power of review was not intended 
by the act of 1867. Suppose, however, that Congress should clearly enact that in 
cases brought to the United States Supreme Court on writ of error from State courts 
all questions, both Federal and non-Federal, should be subject to review. This would 
quite clearly extend the appellate power of the Federal Supreme Court over purely 
State questions not covered by the constitutional grant of jurisdiction to the Federal 
courts, and it is doubtful whether the mere presence of a Federal question in the case 
could be relied upon to give power to pass upon questions not otherwise within the 
jurisdiction of the United States Supreme Court. 1 

It may be said, then, to be very doubtful whether jurisdiction can be vested in the 
United States Supreme Court, on writ of error to a State court, to consider a Federal 
question when the State decision may properly be sustained on non-Federal grounds 
alone. But in a great number of cases, in which State courts declare laws invalid, 
the question of Federal constitutional law is bound up with that of State constitutional 
law. As to such cases, the proposed amendment to the Federal Judiciary Code would 
accomplish merely this: Should a State constitutional amendment be adopted for 
the purpose of overcoming a State decision, a subsequent State decision holding such 
an amendment to be a violation of the Federal Constitution would be subject to review 
by the United States Supreme Court. A final decision of the highest Federal court 
as to Federal constitutional questions could be obtained in two classes of cases: (1) 
Those in which the original State decision adverse to State authority is based solely 
or primarily on Federal constitutional grounds. (2j Those in which a State enact¬ 
ment has been placed in the State constitution, so that it is necessary that a State 
judicial decision adverse thereto be based entirely on Federal constitutional grounds. 

And this would accomplish, in great degree, the desired result of making the United 
States Supreme Court the final interpreter of the Federal Constitution. The difficul¬ 
ties presented by a double series of identical or almost identical constitutional limita¬ 
tions are not overcome, and in each case a State decision on State constitutional 
grounds may have to be overcome by a long and cumbersome process of State constitu¬ 
tional amendment. Again, in a number of States the machinery for constitutional 
amendment is so cumbersome as to be practically unworkable, and in such States the 
people may be practically helpless, no matter how narrow an attitude the State courts 
may take in the interpretation of the State constitutions. But such cases are not 
numerous, and in all the States a fair degree of ease in altering State constitutions 
may finally be attained. Better still, the States, in amending their constitutions or 
in framing new constitutions, may omit from them the broad guaranties of “due 
process” and “equal protection of the laws.” As has been suggested above, such 
guaranties in our State constitutions have proven useless, and worse than useless, since 
the nationalization of private rights by the Fourteenth Amendment of the Federal 
Constitution. 2 

SUPPLEMENTAL NOTE. 

The Constitution says that “the judicial power [of the United States] shall extend 
to all cases in law and equity arising under this Constitution, the laws of the United 
States, and treaties made or which shall be made under their authority.” It may 
be argued that Congress has no power to extend the jurisdiction of the United States 
Supreme Court to hear cases on appeal from State courts, as suggested in this article; 
that the person against whom the Federal constitutional question is set up and against 
whom that question is decided in the State court has no case arising under the Con- 


P 1 The point referred to in the text above is simply that as to whether congressional legislation can vest in 
the United States Supreme Court power to review all questions presented in a case coming from a State 
court by a writ of error, and in thus reviewing all questions presented, either State or Federal, to review 
the decision in so far as it is based on Federal ground, even if there be sufficient non-Federal ground. The 
position of the minority in Murdock ?>. Memphis, however, is broader than this and lends support to the 
notion that where a Federal question is involved sufficient to give jurisdiction on writ of error to the highest 
State court, Congress may confer upon the United States Supreme Court power to determine finally the 
State questions involved, to interpret for itself independently the constitutions and laws of the States, 
even though in their interpretation no Federal question is involved. The United States Supreme Court 
declined to pass upon the question as to whether this may be done (20 Wall., 633, 641). Should the view 
of the minority in this case ever be adopted, and should "Congress expressly extend the United States Su¬ 
preme Court’s'power of review in accordance therewith, the State courts would be to a large extent displaced 
as final interpreters of State constitutions. 

s This article was prepared during the summer of 1911 at the suggestion of some Members of Congress who 
had become interested in the proposed amendment of the Federal Judicial Code. A recommendation 
identical to that contained in this article was made to the American Bar Association during the latter part 
of August by its special committee to suggest remedies and formulate proposed laws to prevent delay and 
unnecessarv cost in litigation: and this recommendation was unanimously approved. The American Bar 
Association, therefore, now stands committed to the proposal to strike from section 237 of the Federal Judi¬ 
cial Code the limiting words which are italicized on page 291 of this article, and bills for this purpose are 
now pending in the Senate and House of Representatives. 



64 


REFORMS IN LEGAL PROCEDURE. 


stitution of the United States, because he has no right which is granted or safeguarded 
by Federal constitutional law. It is extremely doubtful whether the words “cases 
arising under the Federal Constitution’’’ can be so limited as to mean “cases involving 
rights granted by the Federal Constitution.” To illustrate again by the case of Ives 
v. South Buffalo Raliway Co., assuming that only a Federal question is involved, 
the argument suggested above would be as follows: Ives claimed no right which is 
granted or safeguarded by the Federal Constitution: he merely claims under a State 
law, and his claim is based entirely upon rights sought to be conferred by th&t State 
law. The law has been declared unconstitutional by the State court as a violation of 
the Federal Constitution, it is true, but it is urged that he has no case arising under 
the Federal Constitution, because he has no right which is granted by that instrument. 
But he has a claim the determination of which depends upon the Federal Constitu¬ 
tion, and if he had an appeal to the United States Supreme Court that court would 
dispose of the case finally. There is clearly “a case arising” under the Constitution 
of the United States, as this language is ordinarily used; for there is a case involving 
a final interpretation of the Federal Constitution, and one the decision of which deter¬ 
mines rights at issue between the parties to the suit. 

“What constitutes a case thus arising was early defined in the case cited from 6 
Wheaton—Cohen v. Virginia. It is not merely one where a party comes into court 
to demand something conferred upon him by the Constitution or by a law or treaty. 
A case consists of the right of one party as well as the other, and may truly be said 
to arise under the Constitution or a law or a treaty of the United States whenever 
its correct decision depends upon the construction of either.” (Justice Strong, 
speaking for the court in Tennessee v. Davis, 110 U. S., 257.) 

But even if the language of Article III, section 2, does not expressly include such 
a case, this is not conclusive as to the Federal power to enlarge the appellate power 
of the United States Supreme Court, as referred to above. Congress has power “to 
make all laws which shall be necessary and proper for carrying into execution the 
foregoing powers, and all other powers vested by this Constitution in the Govern¬ 
ment of the United States, or in any department or officer thereof.” (Art. I, sec. 8.) 
It would be appropriate under this clause for Congress by legislation to assure the 
uniform interpretation of the Federal Constitution, and to prevent one’s being deprived 
of rights by an erroneous interpretation of the Constitution in a State case. In this 
way would be guaranteed the supremacy of Federal law expressly provided for by 
Article VI, and clearly implied throughout the United States Constitution. 

The question here raised has never been passed upon and can not arise so long 
as the judicial code remains as it is now, but in Martin v. Hunter’s Lessee and Cohen 
v. Virginia decisions were based in part upon the importance of having a uniform 
interpretation of the Federal Constitution and laws, and the obtaining of such a 
uniform interpretation in cases involving the Federal Constitution is within the 
implied if not within the express powers of Congress. If the power to enact such a 
law may be said to be one within the competence of Congress, a case arising under 
it then is clearly one “arising under” the Constitution or laws of the United States 


INDEX. 


Page. 

Statement of Hon. Everett P. Wheeler, representing American Bar Association. 6 
Statement of Hon. Frederick W. Lehmann, Solicitor General of the United 

States. 12 

Statement of Hon. Charles J. Faulkner, of Washington, D. C. 20 

Brief of Joseph I. Doran and Theodore W. Reuth for Norfolk & Western Rail¬ 
way Co.i. . 21 

Report of subcommittee of American Bar Association. 23 

Brief of Everett P. Wheeler and others. 23 

Statement of Hon. Burton L. French, a Representative from the State of Idaho. 49 
Paper of Prof. W. F. Dodd, of the University of Illinois. 51 

32966—12-5 65 


o 






















































*• • 




















































. 

. 





















. 






































Lc My ’12 
























































% 












•» 


» 





. 













- 


' * 














































i 



















































. 




















































9 



















• 

























; ' 














i 











































